R v Williams CA177/96 [1996] NZCA 247 (20 August 1996)

Last Updated: 21 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND C.A.177/96

THE QUEEN

v

ARTHUR GORDON WILLIAMS

Coram: Gault J Tompkins J Heron J

Hearing: 19 August 1996 (at Wellington) Counsel: J Gwilliam for Appellant

^{D J Boldt for the Crown}

Judgment: 20 August 1996

JUDGMENT OF THE COURT DELIVERED BY TOMPKINS J

The appellant was charged with attempted murder or alternatively with wounding with intent to do grievous bodily harm. He was found not guilty on the first charge. He had pleaded guilty to the second. He has appealed against a sentence of seven years imprisonment.

The offence

The victim is a 31 year old police officer. At 9 pm on 19 September 1995, the constable came across a vehicle parked on the State Highway near Lichfield. The appellant was the sole occupant. The constable, having carried out a check on the appellant's details, with the appellant's consent, commenced to search the vehicle. The appellant was co-operative, assisting the constable in the search by trying to open the boot of the vehicle using a chisel that had been jammed into one of the

passenger doors. He then obtained from the glove box a crescent spanner, and again tried to open the boot but without success. The constable told the appellant not to worry and commenced to search the interior. He located a plastic bag containing a Tupperware container that was partly concealed under the passenger's front seat. Inside the container was a plastic bag of white powder under some cotton wool. The appellant thereupon attacked the constable, striking him on his right forehead causing him to drop the articles in his hand. The appellant then stabbed the constable, once in his chest and twice in his abdominal area, with the chisel. He pushed the constable on to the ground where he lay face down. The appellant, again with the chisel, stabbed the constable nine times in his neck and back area and also struck him two further times in the head causing lacerations.

All of this took about 20 seconds. The constable then managed to grab hold of the shaft of the chisel. A further struggle ensured. The appellant applied a head lock to the constable, preventing him from breathing. Finally the appellant broke free and taking the chisel with him, fled the scene in the car.

On Thursday 21 September 1995 the appellant surrendered himself to the Upper Hutt police. In a lengthy video taped interview, he admitted attacking the constable and inflicting these injuries.

The victim

Altogether the constable received 13 stab wounds to his body, both front and back, and three wounds to his head. He also received bruising to his body and face including one large abrasion to the left side of his face. He was admitted to Tokoroa Hospital and released the following day. The doctor described him as being in a lot of pain from these multiple wounds.

The constable had been a police officer for 20 months. He described the stab wounds as being very painful, affecting his sleep for about two weeks. He is permanently scarred. Following the attack, he and his wife received counselling from a psychologist. He was three weeks off work.

He described the attack as a frightening experience and one that is not easy to forget. His family has also been affected, the biggest effect being on his marriage. His wife has been under stress and worry since the attack. He now realises how vulnerable the police are. He thinks twice before pulling a car over for a routine check and will not do routine checks on suspicious cars if there is no back up available. His long term view of working in the police has changed since the attack. He is uncertain now for how long he will remain in the force.

The appellant

The appellant is aged 21. He has a history of previous convictions including assaulting a police officer in September 1992. He has served several terms of imprisonment. The probation officer observed that notwithstanding the term of imprisonment about to be imposed, the appellant has a positive attitude. In the opinion of the probation officer, his demeanour, certainty of purpose and strength of character auger well for his future.

The appellant told the police that earlier that day he had driven from Auckland to Upper Hutt. He and his partner had had an argument on the way down which intensified when they reached Upper Hutt. He was upset. He left in another vehicle, deciding to return to his family in Auckland. By the time he reached Tokoroa he was extremely tired and stopped to sleep. He had been asleep for about three hours when he was woken by the constable.

The sentencing Judge's approach

The Judge in imposing sentence, described the injuries. He accepted that this was a sudden and spur of the moment reaction to the constable finding the container with drugs in it. He said he was not going to sentence the appellant on the basis he knew what was in the container because the evidence did not establish that. Nor was he going to sentence him on the basis that he even knew the container was there. That appears to be a lenient approach. We are inclined to treat his claim that he

was unaware of the container or its contents with some scepticism, as the only reasonable explanation for the sudden unprovoked attack was the realisation that the constable had located the plastic container, and that he had some awareness of the significance of his having done so. However, the Judge presided over the trial, and was in a better position to draw such inferences.

The Judge said he intended to sentence the appellant to ten years imprisonment. Accepting that it was not his fault that the Crown proceeded with the attempted murder charge, he sentenced on the basis that the appellant had pleaded guilty at an early stage and had expressed remorse. For those reasons he imposed a sentence of seven years imprisonment.

The aggravating and mitigating features

The attack was unprovoked. It involved the use of a dangerous weapon, akin to a knife. Some 13 blows were struck with the chisel, some of which were directed towards the chest and neck areas and accordingly were potentially life threatening. They must have been struck with some force to penetrate the constable's clothing. The appellant fled the scene without any offer of assistance. The previous convictions disclosed a period of some four years of fairly steady offending including, in addition to the conviction for assaulting a police officer, robbery and unlawful possession of a firearm.

A particularly aggravating feature is the attack on a police officer acting in the execution of his duty. The attack was apparently motivated by apprehension of the consequences of the constable locating the suspicious package. These features are further aggravated by the constable being alone in a rural area at night. Law enforcement officers, by the very nature of their duty requiring them to investigate suspicious circumstances, are particularly vulnerable to attack. This has consistently been recognised by the Courts. In R v Walker CA.39/90, 22 May 1990, this Court referred to the earlier case of R v McKay CA.307/84, 3 April 1985 where this Court said:

"This Court has on a number of occasions taken into account the special position of police officers who in this country are unarmed. In R v Simon, Barbarich, Roberts and White, (CA 70-73/68, judgment 22 October 1968) this Court said:

"... in New Zealand ... we take pride in the fact that our police officers, in the performance of their ordinary duties, are unarmed ... but it must be understood that because our police officers are unarmed when on ordinary duties, the Courts will take a very serious view indeed of an attack made by anyone - whether he be an escaped prisoner or not - on a police officer, particularly so when the attack is a brutal one as was the position here.

In our opinion it would be harmful to the maintenance of that principle if we took any step in the way of reducing the sentences in this case ..."

More recently in R v Bryant [1980] 1 NZLR 264, a case involving very severe assaults on two police officers, this Court said:

"No community can or will permit the use of such a weapon (a hammer) upon an unarmed constable doing his conscientious best to discharge his responsibilities.""

We agree with these observations. Where an attack is made on a police officer, what may otherwise have been considered to be an appropriate sentence should be increased to take into account this feature. Only in this way can the Courts do what it can to protect police officers acting in the course of their duty.

The Judge, as we have indicated, accepted that the attack was a sudden, spur of the moment reaction. Up until the attack, the appellant had been co-operating with the constable and had consented to the search of the vehicle. The effect of the early plea of guilty is lessened by the inevitability of his conviction once his identity as the assailant was established. But this was established by the appellant's action in voluntarily surrendering to the police the following day and co-operating with a lengthy video interview. The Judge accepted that his expressions of remorse were genuine. The pre-sentence report indicates that he now has a positive and constructive attitude.

Sentencing levels

In R v Hereora [1986] 2 NZLR 164, Cooke P, delivering the judgment of the Court, said at p 170, in considering wounding or causing grievous bodily harm with intent, an impulsive act of violence involving the use of a weapon or intent to inflict serious injury will attract a sentence within the bracket of three to five years and that from five to eight years is reserved for cases exhibiting a combination of aggravating features. Up to 12 years is imposed when there are unusually aggravating features present. That case concerned a gang attack. Hereora had discharged at least five shots from a .303 rifle, one of which struck a victim in the abdomen. On a Solicitor-General appeal the sentence was increased to six years, the Court commenting that a sentence of seven years would have been justified and not interfered with on appeal.

In R v Tuhiwai CA.398/92, 25 March 1993, the victim was a taxi driver. The 19 year old offender had gone into his house and returned with a knife with which he stabbed the taxi driver. A sentence of effectively seven years was reduced to an effective sentence of five and a half years, only because of the age and character of the appellant. The Court commented that for an older offender, especially one with any history of violence, a seven year term could not be criticised.

In R v Simon and Others (supra) a single policeman was cornered by four offenders, struck with beer bottles about the head, kicked while on the ground and left in a semi conscious state. Sentences of five years on three of the offenders and four on another were upheld.

In R v Bryant (supra) two police constables were seriously injured. One suffered a fractured skull through being struck on the back of the head with a heavy hammer and use was made of bicycle chains as weapons of assault. A sentence of seven years imprisonment was reduced to five years because of the disparity of the original sentence with sentences imposed on co-offenders.

In R v Gillies, High Court Gisborne, T.31/93, 22 April 1994, Henry J sentenced the offender to seven years imprisonment for an unprovoked attack on a police officer with a screw driver that

caused serious and permanent injuries. Sentences on other offences resulted in a total sentence of imprisonment of 12 years.

Conclusion

Many of the cases to which we have referred occurred some ten years ago. Since then violent offending has tended to increase, with a consequential increase in community concern, both matters to which this Court should have regard. But for the victim being a police officer, we consider that when regard is had to the unprovoked persistent violent attack, the undoubted intention of the appellant to inflict serious injury, and to the mitigating factors to which we have referred, particularly his surrendering to the police the next day, a sentence of some five years may well have been appropriate. But when to this is added the fact that the victim was a police officer acting in the course of his duties, unarmed, alone at night, in a country area, it is our conclusion that a sentence of seven years, although at the upper end of the sentencing Judge's discretion, is not excessive.

The appeal is dismissed.

Solicitors:

J Gwilliam, Upper Hutt for Appellant

Crown Law Office, Wellington for Crown