Wiseman v R

[2018] NZHC 1684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-94

[2018] NZHC 1684

BETWEEN

MATTHEW WISEMAN

Appellant

AND

THE QUEEN

Respondent

CRI-2018-404-130

BETWEEN

SHIRNEET SUMEET PRASAD
Appellant

AND

THE QUEEN

Respondent

Hearing:	18 June 2018
Counsel:	E Priest for Appellant Wiseman J D Munro for Appellant Prasad B A Keown for Respondent
Judgment:	10 July 2018
Reissued:	10 July 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 July 2018 at 9:00 am pursuant to Rule 11.5 High Court Rules.

Judgment was recalled and reissued to correct an arithmetical error in [70].

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

WISEMAN & PRASAD v R [2018] NZHC 1684 [10 July 2018]

Introduction

[1]    Mr Wiseman and Mr Prasad participated, with two others, in an attack on   Mr Simpson, during which Mr Simpson was grievously injured. Both pleaded guilty to a charge of causing grievous bodily harm with intent to do so.1 The maximum penalty is 14 years’ imprisonment. Mr Wiseman was sentenced to three years and nine months’ imprisonment and Mr Prasad was sentenced to two years and seven months’ imprisonment, the sentencing Judge being Judge Treston.2

[2]    Mr Wiseman and Mr Prasad now appeal their sentences. They say they are manifestly excessive.

[3]    My task is to determine whether, in each case, there is an error in the sentence such that a different sentence should be imposed.3 There will be such an error if a sentence is manifestly excessive.4

Background

[4]    Mr Prasad was the part-owner of a BMW motor vehicle. He and the other owner listed the vehicle for sale on Trade Me. Mr Simpson, with the assistance of an associate, bought the vehicle. It was delivered to Mr Simpson at his home address by Mr Prasad and the other owner. Mr Simpson told them arrangements had been made to transfer the payment for the vehicle electronically to their account through overnight banking. Mr Prasad and the other owner left the BMW with Mr Simpson, believing his assurances as to payment. Not long afterwards, they saw that the BMW had been re-listed on Trade Me at a much reduced price for an urgent sale. Mr Prasad immediately reported this to the Police, but was told that nothing could be done. There are text messages which indicate that Mr Prasad was partly responsible for then

1      Crimes Act 1961, s 188(1). I note the Crown Charge Notice refers under the heading “Charge 1” to “Wounding with intent to cause GBH”. The charge itself is “caused grievous bodily harm to Craig Simpson intending to cause him grievous bodily harm”.   Wounding  is an option under     s 188(1), as is causing grievous bodily harm. The use of “wounding” is incorrect and the computer record should be corrected.

2      R v Wiseman & Prasad [2018] NZDC 5138.

3      Criminal Procedure Act 2011, s 250(2).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

organising for himself, Mr Wiseman and two other men to go to Mr Simpson’s address to either get back the BMW or obtain its purchase price.

[5]Mr Wiseman became involved because he is a friend of Mr Prasad.

[6]    The four men arrived in a vehicle at Mr Simpson’s address at about 10:00 pm on Sunday, 22 January 2017. Mr Simpson was sitting outside with a friend. All four men got out of the vehicle and approached Mr Simpson.

[7]    The driver of the vehicle was holding a black, spiked bat. This was apparently intended to intimidate because it was not used during the subsequent attack. What happened was that the driver of the vehicle immediately punched Mr Simpson in the face with a closed fist and demanded the return of the BMW. Mr Simpson said he did not know where it was, at which point Mr Wiseman and at least one other man assaulted Mr Simpson in a sustained and deliberate attack, during which he was punched numerous times to his head and face, causing him to lose consciousness.

[8]    Mr Prasad did not physically take part in the attack. Mr Wiseman told the probation officer he struck Mr Simpson approximately six times before Mr Simpson fell to the ground. Mr Wiseman was adamant he did not strike Mr Simpson after he had fallen to the ground.

[9]    Mr Simpson suffered a fractured eye socket, a fractured cheekbone and a fractured nose. Mr Simpson, in his victim impact statement dated 6 September 2017, adds a broken jaw to that list.

[10]   The  victim  impact  statement  tells  of  nerve  damage  from  the  side  of  Mr Simpson’s right eye leading all the way around to the back of his head on the right side, and nerve damage to his teeth on the right side at the back, causing them to feel numb. The attack caused lower back pain and severe migraines which occur about four or five times a week, and last a good proportion of the day. Mr Simpson says:

My Doctor has said that the migraines and the nerve damage should get better over time but so far this hasn’t happened and it has been 7 months since the assault.

[11]   The victim impact statement  also  details  emotional  trauma  suffered  by  Mr Simpson.

The sentences

Mr Wiseman

[12]   Mr Wiseman was 20 years old at the time of the offending. He had two sets of minor convictions for driving. At the time of his sentencing on the grievous bodily harm charge, he was also for sentence on two charges of failing to answer his bail and one charge of driving while his licence was suspended. He had pleaded guilty to these charges too.

[13]   Judge Treston had regard to Mr Wiseman’s pre-sentence report.  He noted  Mr Wiseman was assessed as low risk for re-offending and his risk of physical harm to others was assessed as low to medium due to the nature of his offending.5 In a later report, Mr Wiseman’s risk of harm to others was downgraded to low.

[14]   Mr Wiseman had been a fulltime caregiver for his grandmother and for another person. By the time of his sentencing, he was in receipt of a benefit.

[15]The Judge identified the following aggravating factors:6

(a)The attack to the head and face in a sustained attack;

(b)The level of violence;

(c)Premeditation;

(d)The presence of a weapon (although it was not used in the attack);

(e)The injuries suffered;

(f)The fact there were four attackers;

5      R v Wiseman & Prasad, above n 2, at [15].

6      At [21]-[23].

(g)The vulnerability of the victim; and

(h)Elements of home invasion.

[16]   Judge Treston took7 as the authoritative precedent for his sentencing the decision of the Court of Appeal in R v Taueki.8 He adopted a starting point of six years’ imprisonment and gave a discount of 15 per cent for Mr Wiseman’s youth “and other matters”, and 20 per cent for his plea of guilty.9 The Judge took the total discount as amounting to 35 per cent and came to a final sentence of three years and nine months’ imprisonment.10

[17]   The Judge then dealt with the other charges.  He convicted and discharged  Mr Wiseman on the charges of breach of bail, and convicted Mr Wiseman and disqualified him for six months from holding or obtaining a driver’s licence in respect of the charge of driving while his licence was suspended.11

[18]   I pause to note that Judge Treston made some arithmetical errors in reaching the end sentence. If the starting point of six years had been reduced by 35 per cent, then the end sentence should have been three years and 11 months’ imprisonment. However, the discount of 20 per cent for the plea of guilty should have been calculated on the provisional sentence, which was the six-year starting point reduced by 15 per cent for youth and “other matters”.12 The end sentence, calculated properly, would have been four years and one month’s imprisonment. Put another way, the end sentence awarded by the Judge amounts to a 37.5 per cent overall reduction from the starting point.

[19]Ms Priest for Mr Wiseman submits Judge Treston made three errors:

(a)He did not apply R v Taueki correctly;

7 At [12].

8      R v Taueki [2005] 3 NZLR 372 (CA).

9      R v Wiseman & Prasad, above n 2, at [24].

10 At [24].

11 At [25].

12     R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [57]-[60].

(b)He took into account irrelevant matters; and

(c)He failed to take into account relevant matters.

[20]   In adopting a starting point of six years’ imprisonment, the Judge must have found Mr Wiseman’s offending was at the top of band one or towards the bottom of band two of the sentencing bands identified in Taueki. However, although the Judge identified perhaps eight aggravating features, he did not assess them for the extent they were present in the case, nor did he acknowledge the extent to which they overlapped.

[21]   Ms Priest submits the use of violence was serious, but that is part and parcel of the charge. For violence to be an aggravating factor under Taueki, it must be “extreme violence”. Here, there were numerous punches by Mr Wiseman (who admitted to six punches) and at least one other man. Ms Priest accepts that the head being a target for the violence was an aggravating factor, but to then elevate it to the level of extreme violence is double-counting.

[22]   Likewise, the presence of a weapon which was brandished but not used should not be considered an aggravating factor. Mr Wiseman did not take the weapon with him and it played no part in the offending.

[23]   Similarly, the charge requires serious harm to be present since it is an element of the offence. There is double-counting if it is considered as an aggravating factor separate to the level of violence and the targeting of the head. The ongoing degree of harm, if any, was not able to be assessed at sentencing given the age of the victim impact statement.

[24]   Ms Priest accepts that multiple attackers is an aggravating feature. Her submission is that this is why Mr Simpson was vulnerable and so to add that as an aggravating factor is also double-counting.

[25]   As to the aggravating factor of home invasion, Ms Priest submits that an attack outside of the home itself is not within the contemplation of Taueki which referred to “the invasion of the sanctity of the home”.13

[26]   Ms Priest’s submission is that the operative aggravating factors were premeditation, multiple attackers and attack to the head. So far as premeditation is concerned, that can be taken only as referring to an intent to intimidate Mr Simpson for the purpose of recovering the BMW or the purchase price. It cannot be said there was premeditated violence.

[27]   Ms Priest’s submission is that the Judge should have taken a starting point in the low to middle range of band one of Taueki. An appropriate starting point would have been three to three-and-a-half years’ imprisonment.

[28]   Ms Priest also points out that Mr Wiseman was subject to strict bail conditions from the time of his offending to the date of his sentencing. A separate discount of five per cent should have been awarded to take account of that factor.

[29]   Ms Priest also argues for a further five per cent discount to take account of Mr Wiseman’s good character. This would mean an end sentence of two years’ imprisonment or less and an end sentence of home detention.

[30]   I accept the major aggravating factors are premeditation, the number of attackers and the targeting of the head. I accept Ms Priest’s point that premeditation cannot be said to extend to the violence which was inflicted.

[31]   I agree the level of violence is subsumed in the charge and is not in itself an aggravating factor. The level of violence in this case cannot be said to be “extreme”, which would justify its inclusion as a separate aggravating factor.

[32]   I consider also the injuries inflicted on Mr Simpson amount to grievous bodily harm as required by the charge, but are not so extreme as to be a separate aggravating

13     R v Taueki, above n 8, at [31](j).

factor. Of course, the degree of violence and the nature of the harm inflicted as a result help determine where on the sentencing spectrum the case falls.

[33]   I also accept that although taking place on Mr Simpson’s property, the attack on him does not bear the hallmarks of a typical home invasion attack. There was not the same level of intrusion upon safety in the home and the emotional distress usually associated with it.

[34]I note the following example of a band one attack set out in Taueki:

[37]     The following examples may assist with the application of the above principles:

(a)Street attack: Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated. On the other hand, where … there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim.

[35]   The current offending is more serious, however, than the above scenario because the injuries suffered by Mr Simpson have had a lasting effect, and the attack took place on his property.

[36]   I have reviewed the cases referred to me by Crown counsel and by counsel for Mr Wiseman.14 As is often the case, factual matters differ and, for some of them, the charge was brought under the lesser regime of s 188(2) rather than s 188(1). In my view, it is better in this case to look directly through the lens of Taueki.

[37]   Given the above matters, I consider a starting point of six years’ imprisonment would have been an appropriate starting point to reflect Mr Wiseman’s offending were it not for Mr Simpson’s actions and their effect on Mr Wiseman’s culpability, which I discuss later.

14 R v Te Hei [2017] NZHC 1744; Rangihuna v R [2010] NZCA 540; Joseph v R [2013] NZCA 290; Flavell  v  R  [2011]  NZCA  361;  Mackwood  v  Police  HC  Auckland   CRI-2011-404-337,   17 November 2011; Moana-Wharenui v Police HC Hamilton CRI-2008-419-66, 3 September 2008.

[38]   I also discuss later the discounts given for Mr Wiseman’s youth and other matters.

Mr Prasad

[39]   Mr Prasad was 21 years old at the time of the offending. He had no criminal record at all, was living with his parents and was gainfully employed as a qualified mechanic.   He had the same or similar terms of bail as Mr Wiseman, but unlike    Mr Wiseman he complied with his bail terms.

[40]   Judge  Treston  acknowledged  the  principle  of  parity  and  the  fact  that  Mr Prasad’s involvement in the actual assault was “at a lower level”.15 Nevertheless, the Judge adopted a starting point of four years’ imprisonment for Mr Prasad.16 The Judge noted the discounts sought by Mr Prasad’s counsel: five per cent for Mr Prasad being a first offender “with other matters”, five per cent for time spent on bail, between 10 and 15 per cent for his youth, and 20 per cent for his guilty plea.17 The Judge stated this was a total of about 45 per cent.18 But he adopted an overall discount of 35 per cent without specifying its components.19

[41]   Mr Munro for Mr Prasad submits Judge Treston erred by failing to appreciate the difference in sentencing regimes for secondary parties such as Mr Prasad and primary offenders such as Mr Wiseman. Further, Mr Munro submits the Judge should have given Mr Prasad greater discounts for his personal mitigating factors.

[42]   Mr Munro submits that in R v Isaaka20 and R v Eruera,21 Courtney J and Whata J, respectively, held that the Taueki bands are not appropriate for fixing the starting point for secondary offenders. If Judge Treston had given proper weight to the distinction, then he would have found an appropriate starting point for Mr Prasad of no more than two years and nine months’ imprisonment.

15     R v Wiseman & Prasad, above n 2, at [27].

16 At [27].

17 At [26].

18 At [26].

19     At [27]-[28].

20     R v Isaaka [2014] NZHC 2608.

21     R v Eruera [2016] NZHC 532.

[43]   In Mr Munro’s submission, a discount of at least 15 per cent should have been given for Mr Prasad’s youth, previous good character and prospects for rehabilitation. A further five per cent should have been awarded for his genuine remorse. Mr Munro submitted Mr Prasad expressed remorse by returning to Mr Simpson’s address to check on him. That is when he was arrested by the Police. He made admissions when he was interviewed by the Police later that night, wrote a letter of apology and offered to attend restorative justice. The pre-sentence report writer noted Mr Prasad took “ownership” for his offending and, despite the loss of his BMW, showed remorse and concern for Mr Simpson.

[44]   In Mr Munro’s submission, an end sentence of 20 months’ imprisonment was appropriate, and it should have been commuted to 10 months’ home detention.

[45]   Judge Treston decided Mr Prasad’s role in the offending was “at a lower level” than Mr Wiseman’s.22 That is why there was the one-third difference in starting point

– four years as opposed to six years.

[46]   In Isaaka, Courtney J adopted a starting point of three years and six months’ imprisonment for an offender who did not “participate directly” in the actual assault.23 In Eruera, Whata J reviewed cases involving secondary offenders and commented:24

[39]    In  this  regard  I have been  principally  assisted  by the decisions  in R v Isaaka, R v Gossand R v Sansonin which the starting points ranged between two years two months and three years six months on parties to wounding with intent to cause grievous bodily harm offending. In these cases, the parties were either instigators or played a much more active role than either of you in the principal's offending. The Crown also referred me to R v Wereta, but I have found that decision to be of less assistance due to the fact that it dealt with the sentencing of a principal and not a party. I therefore consider that your culpability falls at the lowest end for offending of this type.

(Citations omitted)

[47]   Justice Whata acknowledged25 the Court of Appeal’s comment in Taueki that there may be “exceptional cases” that require a starting point of less than three years’

22     R v Wiseman & Prasad, above n 2, at [27].

23     R v Isaaka, above n 20, at [12] and [14].

24     R v Eruera, above n 21.

25 At [38].

imprisonment.26 The Judge then adopted a starting point for one of the defendants of two years and two months’ imprisonment as a result.27 That defendant played the “role of a mute bystander throughout the entire attack”.28 For a separate defendant, who actively encouraged another defendant to confront the victims, the Judge adopted a starting point of two years and four months’ imprisonment.29

[48]   Contrary to Mr Munro’s submission, Courtney and Whata JJ did not state that the Taueki bands were inappropriate for fixing starting points for secondary offenders. Instead, they correctly identified that the culpability of the secondary offender was less, and adopted a starting point to reflect that.

[49]   I have considered the cases put forward by Mr Munro and by the Crown.30 My view is the sentencing guidelines in Taueki are applicable to this case, albeit adjustments need to be made when having regard to the aggravating features.

[50]   Judge Treston did not say where he put Mr Prasad in terms of Taueki. But because of the starting point adopted, he must have placed him towards the bottom of band one. This reflected the direction in Taueki that “[w]here there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed”.31

[51]   In my view, Mr Prasad was more than a passive bystander lending support by his  presence  because  he  had  played  a  part  in  organising  the  expedition  to    Mr Simpson’s address. The purpose of the expedition was to get back for Mr Prasad and his co-owner either the BMW or the purchase price.

[52]   I regard the conduct of Mr Simpson as relevant to the offending and relevant to the discount  Mr Prasad  and  Mr Wiseman  should  be  given  for  their  youth.  Mr Simpson told Mr Prasad and the other owner of the BMW that he was going to pay

26     R v Taueki, above n 8, at [27].

27     R v Eruera, above n 21, at [41].

28 At [35].

29 At [42].

30     R v Sanson HC New Plymouth CRI-2009-021-1570, 10 August 2010; R v Goss HC New Plymouth CRI-2009-021-1570, 28 October 2010; R v Isaaka, above n 20; R v Eruera, above n 21.

31     R v Taueki, above n 8, at [42].

them for the vehicle. But he did not pay them. Instead, he re-listed the vehicle on Trade Me for urgent sale. Mr Prasad, responsibly, reported the matter to the Police. But he was told that nothing could be done. Mr Prasad was left in the situation where he was about to lose his vehicle and his share of its value. The Police would not help. A mature adult would have gone to speak to Mr Simpson and would not have used violence. Neither Mr Prasad nor Mr Wiseman were mature adults.

[53]   The Court of Appeal in Churchward v R has recognised factors associated with youth which are generic and which often attract a discount.32 One of those factors includes the greater susceptibility of young people to risk-taking and poor decision- making. The fact that the brain is not fully developed provides a neurological basis for this.

[54]   The offending in which Mr Prasad and Mr Wiseman were involved is characteristic of the impulsive risk-taking aspects which the research shows characterises adolescent brain functioning.

[55]   Young people are also thought to be more susceptible to rehabilitative programmes than older people. Particularly those whose life history does not point to them having ingrained antisocial attitudes. Neither Mr Prasad nor Mr Wiseman have such a life history.

[56]   Judge Treston gave composite discounts for youth “and other matters”, but did not explain his assessments. That is unsurprising given the high volumes of District Court sentencing lists. I will make my own assessments of the appropriate sentence structures for Mr Wiseman and Mr Prasad.

Sentence assessments

Mr Wiseman

[57]   I will adopt a starting point of five years and six months’ imprisonment. The reduction reflects Mr Wiseman’s reduced culpability because his motive in going to

32     Churchward v R [2011] NZCA 531 at [77].

Mr Simpson’s property was to help his friend, Mr Prasad, recover the vehicle or its value in a situation where the Police would not help.

[58]   Mr Wiseman was 20 years old. Given the correlation between the recognised factors of risk-taking and impulsive decision-making and Mr Wiseman’s actions, I consider a youth discount of 20 per cent is appropriate.33

[59]   I do not consider further discounts for good character and time spent on restrictive bail conditions are appropriate. Mr Wiseman’s record of previous driving convictions can be put to one side, but he was for sentence on two charges of failing to answer bail and a further driving charge involving disobedience of Court orders.

[60]With the discount for guilty plea, the sentence calculation is:

Starting point:  5 years and 6 months Less 20% discount for youth:  4 years and 5 months Less 20% discount for guilty plea: 3 years and 6 months

[61]   The end sentence I fix as appropriate is three years and six months’ imprisonment. That is three months fewer than Judge Treston’s sentence. The difference is significant enough for a correction not to be tinkering.   I will allow    Mr Wiseman’s appeal to this extent.

Mr Prasad

[62]   I will adopt a starting point of three years and six months’ imprisonment. The reduction from Judge Treston’s four years reflects Mr Prasad’s reduced culpability because his motive in going to Mr Simpson’s property was to recover his vehicle or its value in a situation where he had tried, and failed, to enlist the help of the Police.

[63]   Mr Prasad was 21 years old, and still living with his parents and family. The correlation between the recognised factors of risk-taking and impulsive decision- making and Mr Prasad’s actions seems clear. A youth discount of 20 per cent is appropriate.

33     See generally Whitcombe v Police [2018] NZHC 1409.

[64]   Unlike Mr Wiseman, discounts for good character and time spent on restrictive bail conditions are appropriate. I allow an aggregate 10 per cent.

[65]   I also allow a separate discount for remorse. The fact that Mr Prasad went back to Mr Simpson’s address to check on him is significant. His subsequent admissions and actions are also significant. I allow a further five per cent.

[66]With the discount for guilty plea, the sentence calculation is:

Starting point:  3 years and 6 months Less 35% discount for youth, good

character, bail restrictions

and remorse:  2 years and 3 months Less 20% discount for guilty plea:  1 year and 10 months

[67]   The end sentence I fix as appropriate is one year and 10 months’ imprisonment. It follows I will allow Mr Prasad’s appeal. I will also commute the sentence to one of home detention since Mr Prasad’s youth, life history and family support make such a sentence desirable in the interests of both the community and Mr Prasad. I will make allowance for the almost four months Mr Prasad has spent in custody.

[68]   I have considered the principle of parity of sentencing between co-defendants. Mr Wiseman’s sentence is considerably more severe than Mr Prasad’s. But that is because Mr Wiseman participated in the attack, and does not have the mitigating features which are possessed by Mr Prasad.

Decision

[69]   Mr Wiseman’s appeal is allowed. His sentence of three years and nine months’ imprisonment is quashed. A sentence of three years and six months’ imprisonment is substituted.

[70]   Mr Prasad’s appeal is allowed. His sentence of two years and seven months’ imprisonment is quashed. The appropriate sentence is one year and 10 months’ imprisonment, which can be commuted to 11 months’ home detention. Making allowance for the nearly four months Mr Prasad has spent in custody (the equivalent

of almost eight months’ home detention), I substitute and impose a sentence of four months’ home detention.

[71]   Mr Prasad is, upon his release from prison, to go directly to his family’s address of 3/89 St Georges Road, Avondale, Auckland, where he will serve his sentence of home detention. He is to co-operate in all respects with the authorities in establishing and maintaining the necessary electronic monitoring.

[72]   Mr Prasad is not to undertake any type of employment, voluntary work or training without the prior written approval of a Probation Officer.

[73]   The home detention address may be changed, but only with the prior written approval of a Probation Officer.

[74]   Mr Prasad is to attend an assessment for any programme as directed by a Probation Officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

Brewer J