THE QUEEN v MICHAEL JOHN ROBINSON [1999] NZCA 116 (21 July 1999)

IN THE court of appeal of new zealand

ca 98/99

THE QUEEN

V

MICHAEL JOHN ROBINSON

Hearing:	21 July 1999
Coram:	Richardson P Doogue J Goddard J
Appearances:	M I Sewell for the Appellant S P France for the Crown
Judgment:	21 July 1999

judgment of the court delivered by GODDARD J

[1] The appellant pleaded guilty to a charge of causing grievous bodily harm with intent (s.188(1) Crimes Act 1961) which has a maximum sentence of 14 years imprisonment and a charge of demanding with intent to steal (s.239 Crimes Act 1961) which has a maximum sentence of seven years imprisonment.His guilty pleas were entered following the taking of depositions, the charges having been reduced from ones of attempted murder and aggravated robbery.He was sentenced to six years imprisonment on the wounding charge and to a concurrent sentence of two years imprisonment on the charge of demanding with menaces.He was also convicted and discharged for unrelated breaches of periodic detention and supervision arising from charges in 1996.

[2] He now appeals against the sentence of six years imprisonment on the ground that it is manifestly excessive.

The Facts

[3] The appellant went in company with two male associates to the victim's house for the purpose of recovering cannabis plant which he alleged the victim owed him.The appellant took a knife with him and he and his associates waited for the victim to return home.They then confronted the victim and his girlfriend upon their arrival.The appellant accused the victim of `ripping him off' and demanded the cannabis.He then threatened to kill the victim and began punching him in the face and around the head.He struck the victim about eight such blows before the victim retaliated with a punch to the appellant's face.The appellant then produced the knife and stabbed the victim in the face, causing a 4cm cut which went through the full thickness of his left cheek and into his mouth, which filled with blood.The appellant then stabbed the victim again, this time in his left upper lateral back, inflicting a wound which penetrated the victim's left lung, causing it to deflate.The victim collapsed and the appellant and his associates left the property.

[4] The victim required hospitalisation for three days.He received sutures to his left cheek and upper back and a drain had to be inserted in his left lung. Following discharge from hospital he continued to experience considerable pain over a number of days and also breathlessness.He has fortunately since made a complete recovery.

The Sentencing Decision

[5] The sentencing Judge referred to the aggravating factors as being the drug-related context of the offending; the sustained nature of the violence and the fact there were two distinct stabbings; the criminal intent evident from the nature of the wounds; and the appellant's previous convictions for violent offending, which include a sentence of nine months imprisonment in 1995 for assault with intent to injure.The Judge remarked upon the lack of any expression of remorse on the part of the appellant as an absent mitigating factor.

[6] The sentencing Judge referred to the decisions in R v Hereora [1986] 2 NZLR 164 and R v Karaitiana (CA 247/93, 5 November 1993) as providing the appropriate benchmarks.He found that the appellant's case fell:

...very clearly into the more serious range of offending of this nature.There was nothing impulsive about the incident, or even about the use of the weapon. Very serious injuries were intended, and it is fortunate that the actual consequences were not more significant than they in fact were.

[7] The Judge determined a starting point of eight years imprisonment and allowed a 25% deduction of two years for the guilty pleas.Although the pleas had not been entered until after depositions, the Judge took the view that the appellant was entitled to full credit for them because the original charges had not been supported by the evidence.

[8] In view of the sentences he was imposing, the Judge took the simple expedient of convicting and discharging the appellant on the unrelated breaches of periodic detention and supervision.

Grounds of Appeal

[9] The appeal was advanced on the basis that the sentencing Judge had misdirected himself as to the facts and the law when considering in which category to place the appellant's offending, with the result that the overall sentence of six years imprisonment was manifestly excessive.

[10] In particular, counsel for the appellant argued that the Judge had been wrong to conclude that the aggravating features he found to exist, placed the appellant's offending within the second category identified in Hereora. The sentencing bracket for that second category of offences is 5-8 years imprisonment.Counsel's submission was that the appellant's offending properly fell within the first category in Hereora, which concerns impulsive acts of violence involving the use of a weapon or an intent to inflict serious harm. This category of offending attracts a sentence in the 3-5 year bracket.

[11] In respect of each of the aggravating features found by the Judge, counsel submitted that none were of sufficient gravity or magnitude to elevate the appellant's offending into the second category in Hereora.In comparison with Karaitiana and R v Shannon (CA 97/98, 16 July 1998) the violence meted out by the appellant was not of such severity to justify a starting point of eight years imprisonment.The eight blows struck by the appellant, whilst designed to hurt or punish the victim, were not designed to unduly injure him.The two stabbings were no more than a normal ingredient of the offence of wounding with intent, rather than constituting an aggravating feature in themselves.Likewise, the nature of the wounds sustained was a normal concomitant of such an offence and should not elevate the offending into the second category in Hereora.

[12] It was further submitted that to regard the appellant's previous convictions as an aggravating feature was to effectively punish him twice for his previous crimes and, in any case, those previous convictions did not establish him as having a violent character but simply reflected a propensity and fascination for knives.

[13] In respect of the absence of remorse, counsel submitted that it was unclear as to whether the Judge had regarded that as an aggravating factor.We do not, however, have any doubt about that matter:it is clear that the Judge simply regarded the lack of remorse as an absent mitigating feature.

[14] Counsel submitted that the cases of Karaitiana and Shannon reveal a significant disparity between the appellant's case and the facts and sentences imposed in those cases.Both cases involved prolonged premeditated attacks with weapons which left the victim in each case with permanent injuries.However, neither case reflects any real disparity. Karaitiana's sentence was increased by this Court on a Solicitor-General appeal to five years imprisonment.Shannon involved a sentence of six years imprisonment which this Court found to be in line with similar sentences imposed in comparable cases. Mr Shannon's lack of any previous convictions for violent offending was one of the many factors which was weighed in determining the appropriate sentence in his case.

Conclusion

[15] We are satisfied that the combination of aggravating features in this case properly brings it within the second category in Hereora.Each of the categories identified in that decision, describe effective sentences rather than prescribing starting points.The drug-related background to the incident, the obvious premeditation involved, the taking of two associates and a knife to the incident, the use of the knife on two occasions to inflict potentially disfiguring and life threatening wounds, and the appellant's considerable record of past violent offending properly take his case beyond the 3-5 year bracket.Whilst the starting point of eight years imprisonment adopted by the Judge might be near the top end of the range for this offending, the overall criminality involved does not render it excessive or out of range.

[16] The appellant's past offending was properly a factor for the sentencing Judge to weigh in the balance in fixing the appropriate sentence.The appellant's record is considerable and includes two convictions in 1994 for possession of an offensive weapon and again in 1997 for possession of a knife. As noted, he has previously been imprisoned for assault with intent to injure. We therefore accept Mr France's submission that his present offending might be seen as a predictable progression from his past offending.

[17] There having been no sentencing error as alleged, and all relevant matters having been taken into account, we are satisfied that the sentencing Judge imposed an appropriate sentence within the available discretionary range.

[18] The appeal is dismissed

Solicitors:

Crown Law Office, Wellington, for the Crown

Glover Sewell, Christchurch, for the Appellant