Wynd v Police

[2013] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000132 [2013] NZHC 1270

BETWEEN  NATHAN WYND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   27 May 2013

Counsel:                  N Manning for Appellant

LM Mills for Respondent

Judgment:                31 May 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 31 May 2013 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

Public Defence Service, Auckland. Crown Solicitor, Auckland.

WYND v NZ POLICE [2013] NZHC 1270 [31 May 2013]

Introduction

[1]      At 5.30 am on 4 June 2012, the appellant Mr Wynd attacked a workmate by kicking him and punching him with his fists, and rubbing an empty beer bottle in his face.  The attack caused serious injuries.  He was charged with wounding with intent to injure1 and pleaded guilty.

[2]      On 4 April 2013, Judge Dawson sentenced him to two years’ imprisonment at the District Court at Auckland.2   He appeals that sentence.  The essential submission on his behalf is that the least restrictive outcome in all the circumstances would have been home detention, and that this is the sentence that should have been imposed.

[3]      At the time of the offending Mr Wynd was aged 22 and working as a chef. The victim was a workmate.   On the night in question, the victim and Mr Wynd along with other work colleagues had gone to a bar in Galway Street in the central city.  The victim had an unremarkable exchange with a female at the bar.  Mr Wynd took exception to this exchange and became very angry with the victim.  The victim was aware of this and waited in the toilets for some time before then attempting to go home.

[4]      Mr Wynd has training in martial arts and kickboxing.  When the victim went outside Mr Wynd, who had been waiting, attacked the victim with a kick to the head that knocked him off his feet.   As the  victim lay curled up on the ground, he proceeded to punch him several times about the face and head.  He took hold of an empty beer bottle and rubbed it in the victim’s face.

[5]      The attack on the victim was interrupted by a passing Police patrol.  Officers at the scene noted blood on Mr Wynd’s shoes, sweater, bag and hands.  There was a blood-stained beer bottle nearby.

[6]      Photographs on the file show severe injuries to the victim.  He was knocked unconscious, suffered a severe wound to the scalp that required seven stitches, had

swelling  on  both  sides  of  the  face,  a  swollen  and  closed  right  eye,  pain  and

1      Crimes Act 1961, s 188(2).

2      R v Wynd DC Auckland CRI-2012-005-014937, 4 April 2013.

discomfort to his left cheek, and grazing about his head and face.  He was admitted to hospital and spent six days off work.

The decision

[7]      The Judge considered the violence inflicted to have been at a high level.  He found the photographs of the victim and his injuries to be “quite simply shocking”.3

The Judge noted that R v Taueki4  was the relevant authority, and that the guideline

judgment of Nuku v R5  did not apply as Mr Wynd’s offending pre-dated that case. He  considered  that  there  were  a  total  of  six  of  the  factors  set  out  in  Taueki

established, and that contributed to the seriousness of the offending. These were:

extreme, unprovoked and prolonged violence;

premeditation;

relatively serious injuries;

the use of a bottle;

sustained attack to the head, including the initial kick; and the vulnerability of the victim.

[8]      The Judge noted that these factors existed to varying degrees of seriousness. He fixed a starting point of two years and nine months.  Judge Dawson considered that for a guilty plea, 21 per cent would be the appropriate deduction, being a deduction of seven months.   He took into account the remorse that Mr Wynd had expressed and deducted a further two months, leaving an end sentence of two years’

imprisonment.  In relation to home detention the Judge stated:6

… I then need to consider whether home detention would be appropriate. Taking into account that there are six Taueki factors I have had to consider

3 At [8].

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

5      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

6      R v Wynd, above n 2, at [20].

when I come to sentence you, and the need for deterrence because of the extreme danger associated with this sort of offending, I am of the view that home detention would not be an appropriate sentence.

[9]      Ms Manning for Mr Wynd did not criticise the starting point and allowance for personal factors fixed by the Judge.  Nevertheless, I propose considering these and whether they are in the range, as the sentencing analysis of whether home detention is the appropriate sentence rests on the platform of the preceding analysis of starting point, and the allowance for personal factors.

The starting point

[10]     In  assessing  culpability,  the  Judge  was  right  to  consider  the  aggravating factors referred to in Taueki.  Of those aggravating factors the following, in my view, were clearly made out, although to varying degrees of seriousness:

(a)      Premeditation.  The attack was not spontaneous.   I accept that there was not the most serious sort of premeditation in the sense that the attack was not planned a long time in advance in the absence of the emotion of the moment.  Nevertheless, Mr Wynd’s attack was not an immediate reaction to a perceived slight.  He waited around until the victim left and then deliberately attacked him.  He had time to cool off and reflect, but decided instead to exact revenge for the perceived slight.

(b)      There was serious violence.  Judge Dawson did not mischaracterise it.

It was a prolonged and vicious attack.  Indeed, it could be thought that Mr Wynd was fortunate not to be subject to a more serious charge. Mr Wynd set out to seriously hurt and damage the victim, and did so. The victim impact statement shows the severe effect of the attack. There can be no doubt that the emotional trauma of being attacked in this way will live with the victim for the rest of his life.

(c)      The attack was to the head, the most vulnerable part of the body.

(d)There was a weapon involved, albeit not in the most lethal or serious way.   It was not smashed and its cutting edge was not used, and further it was not broken over the victim but rather rolled over his face.  Nevertheless, there was an undoubted element of cruelty in the use of the bottle.

[11]     I do not place weight on the other two factors referred to by the Judge, serious injuries and vulnerability, as it seems to me those factors overlap with the four identified aggravating factors.

[12]     In my view, the offending was of sufficient seriousness to warrant placement in the most serious bands outlined in both the earlier Court of Appeal decision of R v Harris7  and the later decision of Nuku (which did not directly apply).   It was fortunate that Mr Wynd was interrupted in his assault by the Police.

[13]     In sentencing in this area it must be borne in mind that by definition, cases showing the most serious intent to inflict violence are excluded, as are cases that involve the infliction of grievous bodily harm.  When the cut-off point between those types of charges and those involving only injury is considered, it can be seen readily that this is a serious example of the lesser crime of wounding with intent to injure. Given the maximum period of seven years, I am of the view that the starting point fixed by the Judge of two years and nine months was well within the range and could have been higher.

Personal factors

[14]     Mr  Wynd’s  guilty  plea  appears  to  have  been  at  the  earliest  possible opportunity.   Equally, however, it must be recognised that the Crown case against him was extremely strong; he was literally caught with the victim’s blood on his hands.   The 21 per cent deduction for the guilty plea was appropriate.   The two month deduction for remorse, while not specifically criticised by Ms Manning, arises

as part of the focus in her submissions in relation to home detention, on Mr Wynd’s

7      R v Harris [2008] NZCA 528.

remorse and his rehabilitative efforts.  For the reasons I will set out below, I consider the allowance for remorse to be more than adequate.

Home detention

[15]     Ms Manning was critical of the Judge’s consideration of home detention.  She observed that in considering home detention the Judge failed to consider the requirement of s 8(g) of the Sentencing Act 2002 (the least restrictive outcome) and s 8(i) (the offender’s personal, family, whanau, community and cultural background). Ms  Manning  submitted  that  he  had  given  too  much  emphasis  to  the  need  to denounce and deter the conduct and the effect of the offending on the victim, rather than weighing Mr Wynd’s rehabilitation prospects and the desirability of keeping him in the community.  She submitted that the Judge failed to take into account the material contained in Mr Wynd’s affidavit.

[16]     Mr Wynd’s affidavit in the District Court set out his views on the offending and his remorse.   On the day after the offending, Mr Wynd resigned from his job which he recognised as being no longer tenable given what he had done. He also sent a text the morning afterwards, before any charges were laid, telling the victim that he was sorry for what he had done and that he was leaving their place of employment. He also prepared a letter to the victim setting out his remorse and a copy was provided to the Court, although this letter he says was not forwarded on his lawyer’s advice.  Thus, it is said he has shown unusual and sincere remorse which has been more than mere words, demonstrated by his immediate resignation from his employment.

[17]     As a related personal factor, Ms Manning emphasised the serious neglect suffered by Mr Wynd at the hands of his mother when he was a young child set out in his affidavit.  His mother, it is said, was an alcoholic, and Mr Wynd was damaged by  a  vicious  custody  battle  between  his  parents.     She  also  emphasised  that Mr Wynd’s father stands by his son and has offered him a stable home.

[18]     There is an immediate difficulty in the submission of Ms Manning to the effect that this has been a case of an exemplary display of remorse.   Like Judge Dawson, I do not consider that to be the correct analysis.  Mr Wynd, when he was

arrested, denied being involved in the assault, and claimed that he had come looking for the victim and discovered him hurt.   He told a deliberate lie to cover up his involvement.  I accept that the next day he resigned from his employment and sent a text of apology, but that remorse lacked the immediate flavour of remorse directly after the attack, at the time when he was faced with the obvious consequences of what he had done.

[19]     Further, the probation officer did not consider that Mr Wynd showed genuine remorse and assessed him as having a medium likelihood of re-offending.  He noted that he was not forthcoming with expressions of remorse or offers to pay reparation. While Mr Wynd spoke of regret at the offending, he also appeared to joke about the incident by saying that he had potentially saved the victim’s life by ensuring that he did not end up driving under the influence of alcohol.  Thus, in my assessment the Judge had a proper basis to limit the discount for remorse to two months.

[20]     I accept entirely that Mr Wynd had an appalling childhood, and that this may to an extent explain his irrational descent into serious violence on the night.   The Judge could have made some reference to this in his judgment.  However, the fact that he did not do so does not mean it was overlooked, and in the end personal circumstances such as these can only be given limited weight when the offending has been serious and requires denunciation.   Here, there is a significant need for deterrence.

[21]     This was offending that required denunciation.  Mr Wynd must be deterred from any further behaviour of this sort.  He was not able to call in aid good character. He has a criminal record, which while not of the most serious order did include one appearance in the Youth Court where he was admonished for common assault.

[22]     Home detention provides a sentencing court with a further sentencing option. Section 16(1) of the Sentencing Act is relevant, and requires the court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.  Section 16(2) of the Sentencing

Act must also be considered.8   In R v James9 it was stated by the Court of Appeal:

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.  …  We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise.   It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[23]     In my view, Judge Dawson made no error in principle, or gave incorrect weight to any particular factor.  He was not plainly wrong.  Indeed, in my view he was correct in deciding that a sentence of imprisonment was the appropriate sentence and the least restrictive sentence that could be imposed.  This was deliberate violent offending involving kicks to the head, and punching and kicking to a person prone on the ground.   It caused serious injuries.   It had a vicious, personal flavor.   It deserved to be denounced.   Mr Wynd and others must be deterred.  As the Judge said, the extreme danger associated with this sort of offending demands a stern response.

Result

[24]     The appeal is dismissed.

……………………………..

Asher J

8      R v Iosefa [2008] NZCA 453 at [35].

9      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 (CA) at [17].