R v ER CA511/95 [1996] NZCA 295 (15 February 1996)

Last Updated: 13 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.511/95}

THE QUEEN

v

_ER

Coram: Eichelbaum C J McKay J

Thorp J

Hearing: 15 February 1996

Counsel: M J Bodie for Crown

B S Yeoman for Respondent

_{Judgment: 15 February 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

The respondent was convicted after a jury trial on a number of counts all arising out of the one occasion. There were two counts of aggravated burglary of a dwellinghouse at [W], one by having a knife with him as a weapon while in the building, and one of using of piece of concrete as a weapon while still in the building. There was one count of burglary relating to the same dwellinghouse on the same occasion. There was a count of injuring with intent to injure, one of assault while having a knife with the intention of using it as a weapon, and one of assault using a piece of concrete as a weapon. He was sentenced at the same time on a further charge that being a male he assaulted a female, he having been found guilty in a defended summary hearing of an earlier assault on the same victim. He was sentenced to 2 years imprisonment on each of the major charges, and 6 months on the lesser

charge, the sentences to be concurrent. The Solicitor-General seeks leave to appeal on the grounds that the Judge erred in principle in not imposing a cumulative sentence, and that the sentence was manifestly inadequate for the totality of the offending.

The major charges arose from events which occurred on 21 February 1995. The respondent smashed his way into his ex-partner’s home at night and subjected her to a terrifying attack with a knife and a piece of rough concrete, both of which he had brought with him. What happened is described in her evidence as follows:

“After this exchange this argument between you this yelling did anything happen? ... Yes.

What was that? ... [E] pulled out a knife out of his jacket and then he dove [? drove] at me on the bed.

...

You say he dove [?drove] at you - is that the word you used? Yes.

And what happened? ... And then I just grabbed his hands that he had the knife in and then we just kind of struggled with the knife and then he pulled the knife away from me and then my hands went onto the blade so I let it go.

Did the knife cut you? ... No.

...

What then happened? ... He had a rock and he was just bashing me over the head with the rock.

Did you see where he got the rock from? ... No - I just felt - I just knew he had something real hard in his hand.

And it was hitting you where was it hitting you? ... My head.

What part of your head? ... My whole head - the back of my head the top of my head the front of my head the side of my head.

Your face? ... Yeah.”

Despite her injuries, the victim managed to calm the respondent sufficiently to end the attack upon her. He then smashed his way out the back door of the house and left the scene by taxi. The taxi was stopped by the police and he was arrested soon thereafter. The victim described her injuries as requiring stitches on her head and involving a broken nose and a hairline fracture of her cheekbone. She was treated in hospital but did not need to be admitted overnight. The Victim Impact Statement

discloses the considerable fear and intimidation she felt as a result of her ordeal, and from subsequent communications she received from the respondent. She was afraid that he might subject her to further violence if granted bail. He was in fact remanded in custody. She said that she no longer feared him as she was entering into a new relationship, but as the District Court Judge noted, this comment was no doubt made on the assumption that he would be in custody for some time.

The respondent is 25 years of age. He has some 60 previous convictions entered on some 23 occasions in the past 11 years. There have been numerous convictions for burglary and theft, but no other recent offences involving violence. His longest previous prison sentence was of one year imposed in June 1992. He was for a number of years in a de facto relationship with the victim, and they have children aged 7 years and 5 years. The pre-sentence report, prepared in respect of the summary charge, states that from his own description of his relationship the use of violence as a problem solving mechanism is firmly entrenched. He completed an anger management course on a previous sentence of imprisonment, but he stated it was simply not effective for him in the real world. The report says that he has a long history of institutionalisation and instability, and apparently lacks the ability to deal with emotions raised by past incidents. This leads him to externalise blame and build irrational anger.

The Crown’s argument as to error of principle is based on section 5A of the

Criminal Justice Act 1985. That section provides: “(1) Where -

(a) An offender is convicted of an offence punishable by imprisonment for a term of two years or more; and

(b) The offender was, at the time of committing the offence, on bail or remanded at large in respect of any other offence involving violence against, or danger to the safety of, any such person; and

(c) The court is satisfied that, in the course of committing the offence, the offender used violence against, or caused danger to the safety of, any other person, -

the court shall impose a full-time custodial sentence ...

(2) In determining the length of any sentence of imprisonment to be imposed in any case to which subsection (1) of this section applies, the court shall have regard, among other matters, to the need to protect the public.

(3) Any sentence of imprisonment imposed by the court shall be cumulative upon any sentence of imprisonment to which the offender is then subject for the offence for which the offender had been on bail or remanded at large, unless the court is satisfied that, because of the special circumstances of the offence or the offender, the sentence should be concurrent with the earlier sentence.”

It appears that the section was not brought to the attention of the District Court Judge at sentencing. Where the section applies, subsection (3) requires that any sentence for the later offence be cumulative unless the Court is satisfied that because of special circumstances it should be concurrent. The conditions of subsection (1)(a) and (b) apply, and (c) would clearly apply were it not for the words “any other person”. Here the respondent was on bail in respect of the summary charge when sentenced on the major charges, and the latter involved violence against the same victim, not some other person.

Mr Bodie, for the Crown, suggested in his written submissions that the difficulty could be overcome by adopting a purposive interpretation, but no amount of interpretation could enable the words “any other person” to be read as “any person”, denying any meaning to the word “other”. At the hearing, Mr Bodie did not pursue this argument. He submitted instead that the words “any other person” meant “other than the offender”. The wording of paragraph (c) of section 5A(1) has been copied from the similar wording of section 5(1)(b), where the context is quite clear that this is the meaning intended. Mr Yeoman did not feel able to argue the contrary, and we agree that this must be the meaning intended in section 5A(1)(c), despite the enigmatic reference to “any such person” in paragraph (b).

There is no appeal from the sentence on the summary charge, but we agree that the sentences on the major charges were required in the circumstances to be cumulative. They must, however, be fixed taking their cumulative nature into account, so that the total of the sentences properly reflects the totality of the offending.

The substantial issue is whether the total sentence is manifestly inadequate. The maximum sentences available were 14 years in the case of the aggravated burglary charges, 10 years for burglary, 5 years for injuring with intent and 5 years for assault with a weapon. The Crown pointed to the following matters as aggravating features:

Forced intrusion into a dwelling at night by smashing a door;

Taking two offensive weapons, namely a boning knife and a lump of concrete, into the dwelling;

Setting upon the female victim with both weapons in a determined and premeditated way;

Committing violent offences in the presence of young children; Disconnecting or preventing the victim from using her telephone; Smashing a rear door when exiting from the scene;

Causing serious injuries to the victim; Causing psychological trauma to the victim;

No apparent acknowledgment of responsibility or expression of remorse;

Offending carried out while the respondent was on bail for earlier violence against the same victim.

Both counsel referred to other cases. It is impossible to make direct comparisons, but we are satisfied that the sentence imposed in this case was inadequate to properly reflect the gravity of the offending, including the various aggravating features which were present. Mr Bodie submitted that the minimum proper sentence should be 3 years imprisonment, cumulative on the separate sentence of 6 months, making a total of 3½ years. We agree that such a sentence might well have been appropriate, and if imposed would not have been disturbed on an appeal to this Court. The present appeal is brought by the Solicitor-General, and the Court should not increase the sentence any more than is necessary to bring it within the appropriate range available to the sentencing Judge. This can be achieved without going as far as the Crown suggested.

Leave will be granted and the appeal will be allowed, and the sentences on the major offences quashed. In their place there will be imposed a sentence of 2½ years imprisonment. This will be cumulative on the 6 months imposed on the lesser charge, making a total of 3 years.

Solicitors

Crown Law Office, Wellington