Woods v Police HC Auckland CRI-2011-404-000211

[2011] NZHC 1427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000211

BETWEEN  ROY ALLAN WOODS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 October 2011

Appearances: K Jones for Appellant

M Williams for Respondent

Judgment:      31 October 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            K Jones, Papakura

WOODS V NEW ZEALAND POLICE HC AK CRI-2011-404-000211 31 October 2011

[1]      On  10  May  this  year  in  the  District  Court  at  Pukekohe  Judge  Winter sentenced the appellant to five years’ imprisonment.  The appellant appeals against that sentence.

[2]      The appellant was before the Judge for sentence for a number of offences both summary and  indictable.   In  relation to the summary offences he was for sentence on four counts of theft or stealing, one count of failing to comply with community work sentence, one of driving with excess blood alcohol (being the third or subsequent offence), one of refusing to permit a blood specimen to be taken, one of careless driving, and one of failing to comply with a lawful requirement.  He was also separately charged with two counts of breach of a protection order, two counts of threatening to kill, two counts of wilful damage, two counts of assault with a weapon, and one count of wounding with reckless disregard.

[3]      After taking into account the guilty pleas, the Judge ultimately constructed the sentence by considering 17 months was appropriate for the summary offending and then concluding, again after taking account of guilty pleas and other personal mitigating  factors,  a  cumulative  sentence  of  four  years  was  required  for  the indictable offending.

[4]      In his carefully reasoned sentencing notes the Judge then considered that, having regard to overall totality the sentence of five years five months’ imprisonment would be too  much.   He  reduced  the balance  of the summary offending to  12 months’ imprisonment to arrive at the end sentence of five years’ imprisonment.

[5]      In his focused submissions in support of the appeal Mr Jones directed his attention to the starting point the Judge took in relation to the indictable matters.  Mr Jones submitted that in taking a starting point of five years for that offending the Judge had erred.  The starting point was too high.  He submitted that an appropriate starting point for that offending was in the region of three and a half years before taking account of the guilty plea and other mitigating factors.   He submitted that overall an end sentence of something in the region of three years 10 months or four years for all the offending was appropriate and that the end sentence of five years in this case was too high.

[6]      To  support  his  submission  counsel  sought  to  contrast  it  with  Guyton  v Police,[1] a charge of wounding with intent involving the use of a stool on the victim’s head with a great deal of force, where Fogarty J had taken three and a half years as a start point.  Counsel also referred to Grimshaw-Jones v R.[2]    In that case there had been an assault with a switch knife, leading to the cutting of a jugular vein which required stitching and also the cutting of a person with the victim.   The Court of Appeal upheld a starting point of two years, eight months in that case, observing it was by no means excessive.

[1] Guyton v Police HC Timaru CRI-2007-476-000002, 9 February 2007

[2] Grimshaw-Jones v R [2010] NZCA 490.

[7]      The offending leading to the starting point of five years can be taken from the summary.  The victim and the appellant had previously had a relationship.  They had three children together.  The relationship terminated approximately two years before the incident.  On 16 July 2010 the appellant was at the victim’s address.  They had consumed alcohol.   The victim provided the appellant with a phone number. Apparently the number was a wrong number.  The appellant returned to the victim’s address after he had left, and began abusing her about the number.  He then threw a beer bottle through the garage window smashing glass.   He continued to verbally abuse the victim who became concerned for her safety.  Although she told him to leave, and had the support of a protection order, he refused to do so.   When he ultimately did leave he threatened to kill her.  She feared for her safety.

[8]      Less than two months later on 3 September 2010, late at night, the appellant went to the victim’s address again.  He awoke her by knocking on the ranch slider to her bedroom.  He said he was there to give her books for the children.  The victim took the books from him.  As she did so she turned around to put the books down. The appellant then struck her to the rear of the head with a wheel brace.  The blow caused her to fall to the floor.  He stood over her with the wheel brace.  The victim feared the appellant would hit her again with the brace.  She grabbed the brace to stop him doing so.  He then produced a knife which he pointed at her to force her to release her grip on the wheel brace.   The children were alerted by the noise and observed this offending.   The appellant then punched the victim twice in the face

before going to the victim’s flatmate’s bedroom.   The appellant then awoke the

flatmate, shouting at her and waving the wheel brace in the air threatening to hurt both the victim and the flatmate.  He then produced the knife again, pointing it at the victim’s throat stating he could kill her if he wanted to.  As a result of the attack on her the victim suffered several lacerations to her head which required treatment.  She also suffered bruising to her shoulder, mouth, forearm and she spent overnight in hospital.

[9]      While in the Grimshaw-Jones’ case the weapon was perhaps more lethal and the resultant injuries more serious it effectively involved a one-off single incident.  It lacked much of the aggravating context of the appellant’s charges in this case.

[10]     In relation to Guyton it has to be observed that in this case the totality of the offending and the ongoing nature of the incidents make the appellant’s offending a much more serious series of offences.   The Judge was quite correct to take the wounding with reckless disregard as the lead offence but, in taking that as the lead offence, he was also required to take into account all of the circumstances of the offending.  The offending was further coloured in this case by the existence of the protection order and the cowardly nature of the attack to the back of the victim’s head with a wheel brace, a weapon that the appellant had brought with him to the victim’s home late at night.

[11]     In the circumstances I have to say that, whilst the starting point of five years for the offending was at the upper end of the range available to the Judge, it could not be said to be out of range.  For that reason alone the appeal would have to be dismissed.

[12]     However, there is a further and fundamental reason why the appeal must be dismissed.  That is because of the principle enunciated by the Court of Appeal in R v Xie[3] that the fundamental tenet of the totality principle is that the final sentence must reflect the totality of the offending.  How the total sentence is made up has never been important.   In this case the end sentence of five years reflected not only the

incident that I have described above but also the summary offences offending.

[3] R v Xie [2007] 2 NZLR 240 (CA).

[13]     It is not open for an appellant, as the appellant has sought to do in this case, to pick and choose elements of the sentence and argue that those particular elements are too high.  As the Court of Appeal said in R v Xie where multiple offences are involved the sentence must reflect the totality.  In respect of such offending the Court will not insist the total sentence be arrived at in any particular way.  The important point is that the total sentence must represent the overall criminality of the offending and offender.

[14]     In the present case, while another Judge could perhaps have taken a starting point of four and a half years for the offending I have described as opposed to the five years taken by the Judge, the other Judge would equally have been entitled to uplift  that  four and  a half  year starting point by 12  months  for the appellant’s previous history instead of the six months taken by the Judge in this case.   The appellant has five previous male assaults female convictions, three possessing an offensive weapon, one of common assault and one of behaving in a threatening manner.

[15]     Further, another Judge might have adopted a lesser starting point but then ultimately, when considering the totality of the offending overall, might have taken the view there was no need to further reduce the offending to take account of totality in relation to the summary offences.  In this case of course the Judge gave a discount for that when deducting a further five months from the total sentence.

[16]     For those reasons the sentence constructed by the Judge in this case complied with the requirement confirmed by the Court of Appeal in R v Xie that the total sentence must represent the overall criminality of the offending and the offender.  It cannot be said that in the circumstances of the overall offending and the offender in this case that an end sentence of five years’ imprisonment was manifestly excessive

or not available to the Judge. The appeal is dismissed.

Venning J