Winkelmann v R

[2010] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

CA153/2010
[2010] NZCA 215

BETWEENKURT TAMATI WINKLEMANN

Appellant

ANDTHE QUEEN

Respondent

Hearing:20 May 2010

Court:William Young  P, Chisholm and Keane JJ

Counsel:C D Savage for Appellant

P A Currie for Respondent

Judgment:28 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by William Young P)

An appeal against sentence

[1]        On 19 February this year the appellant appeared before Judge Kellar in the District Court at Dunedin on three charges:  injuring with intent to injure, assault with intent to injure and breach of community work.  He was sentenced to a total of two years eight months imprisonment and ordered to pay reparations.[1] 

[1]       R v Winkleman DC Dunedin CRI-2009-012-1236, 19 February 2010.

[2]        He now appeals against sentence.

The facts

[3]        The charges of injuring with intent to injure and assault with intent to injure related to an incident which occurred in the early hours of 6 February 2009. 

[4]        The two complainants (aged 27 and 25) had just left an inner city bar in Dunedin.  The appellant and a male companion were in the vicinity.  They were being abusive and making rude comments to some girls who were also there.  One of the complainants said something to the appellant and his companion.  The upshot was that the appellant punched that complainant, who fell straight to the footpath.  He continued to punch the complainant’s head as he was lying on the footpath.  The second complainant was pushed away by the appellant’s companion.  He went over to try to pick up his unconscious friend from the footpath.  The appellant punched the second complainant in the face.  He fell back against a shop window while the appellant continued to try to hit him.  As he tried to protect himself from the appellant, the appellant tried kneeing him in the face and head.  He was able to break free and he ran off.

[5]        The first complainant suffered concussion, a black eye, a swollen face and grazing to the forehead and temple.  He required follow up treatment at the Dental School for x-rays and ongoing numbness to his face and teeth.  The second complainant was, in the aftermath of the incident, unable to open his mouth and was nauseous for days.  He was, however, discharged home.  On a review three days later a jaw fracture was located and he received acute surgery and internal sutures.

[6]        The charge of breach of community work arose in this way. 

[7]        The appellant had been sentenced on three occasions to community work and had 182 hours remaining.  He failed, in September 2009, without reasonable excuse, to report to a probation officer as required.

The appellant

[8]        The appellant was 21 years of age at the time of sentencing. 

[9]        He has a number of previous convictions including for injuring with intent to injure (relating to an incident on 17 September 2006), injurying with intent to injure (relating to an incident on 25 February 2007) and assault with intent to injure (relating to an incident in May 2008).

[10]       The appellant has boxing training and experience.

[11]       The appellant spent approximately a year on bail between his arrest and his sentencing.  During that time he made reasonable progress in turning his life around, albeit that there was one breach of bail and, as well, he did not comply with the community work sentence he was serving.  Most relevantly, however, for present purposes he engaged in a stopping violence programme. 

The Judge’s sentencing approach

[12]       In his sentencing remarks, the Judge referred to the victim impact reports which referred to the quite appreciable injuries that both victims suffered and their consequences.  He also noted that the offending involved two victims, with punching to the head in each case.

[13]       He took his guidance from the decision of this Court in R v Harris and expressed the view that the case fell within band three of the bands discussed in that case. [2]  Such cases warrant sentences of imprisonment of between 18 months and up to a maximum of five years.  On this basis he took the view that the appropriate starting point of sentence was three years three months. 

[2]R v Harris [2008] NZCA 528, at [17].

[14]       The Judge concluded that the appellant’s previous convictions (which included not only the offences of violence which we have mentioned but also a number of other offences) justified an uplift of three months. 

[15]       He reduced the provisional sentence by two months to allow for a willingness to pay reparation of $500 to each of the victims.  And, despite the guilty pleas being entered only on the eve of trial, he allowed a further 20 per cent (or eight months) for guilty pleas; this on the basis that the appellant had initially faced more serious charges.

[16]       The Judge also referred to what he described as an “impassioned plea” made by Mr Large on behalf of the appellant.  The Judge, however, took the view that a sentence of home detention to which he might otherwise have been attracted, was simply not available because the sentence of two years eight months which he arrived at could not be commuted to one of home detention.

The appeal

[17]       Mr Savage for the appellant advanced two broad submissions, first that the starting point was too high and secondly that insufficient weight was given to the attempts to rehabilitate himself prior to sentencing and the year the appellant spent on bail.

[18]       In support of the first submission Mr Savage referred to a number of decisions, one being R v Keepa[3] which preceded R v Harris and as well, the judgment of Priestley J in O'Hanlon v R.[4]

[3]R v Keepa CA14/09, 18 July 2007.

[4]O'Hanlon v R HC New Plymouth CRI-2009-443-26, 18 December 2009.

[19]       Keepa involved an assault of broadly similar intensity to that involved in the present case save that there was only one victim, not two.  The starting point there of three years is not out of the way compared to the Judge’s starting point in the present case.  O’Hanlon, being a High Court judgment on appeal for sentences imposed by a District Court Judge, is of comparatively limited moment to the present context.  What is of more relevance to us is whether Judge Kellar’s approach was consistent with the guidance given in Harris.

[20]       We are well satisfied that it was.  These were serious assaults with appreciable injuries committed by a man who must have known that he was capable of inflicting serious injury with his fists.  There is no mitigating context.  In those circumstances, the three years three months starting point was, on our appreciation, well open to the Judge.

[21]       We recognise that the appellant spent a year on bail and that during this time he was subject to a curfew.  However, time spent on bail before sentence is usually only taken into account where the conditions of bail were very restrictive.  In this case, there was a curfew but not on a 24 hour basis and the resulting regime was not akin to home detention.  We are therefore inclined to view that a particular discount was not required.   In any event, at most only a modest allowance would have been justified.   The restraint demonstrated by the Judge’s uplift of only three months for the appellant’s previous serious offending and the generosity of the 20 per cent discount for the plea seem to us to more than compensate for the lack of an explicit allowance for this factor.  In saying this we note that at [15] of the sentencing remarks the Judge did refer to the fact that the appellant had been on bail “on a strict curfew” and that he took this into account.

[22]       As is apparent from what we have already said, we accept that the appellant may have turned a corner in his life, this notwithstanding the breach of bail and the breach of community work which occurred during the period of his remand.  In saying this, we recognise that desistance from offending is often a process rather than an event.  That said, however, we cannot see a principled basis upon which it could be fairly suggested that the prison sentence imposed upon him was excessive.

Disposition

[23]       Accordingly the appeal is dismissed.

Solicitors:

Aspinall Joel, Dunedin for Appellant

Crown Law Office, Wellington for Respondent