THE QUEEN v ZANE WOOD [1999] NZCA 42 (30 March 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 28/99

THE QUEEN

V

ZANE WOOD

Hearing:	30 March 1999(at Christchurch)
Coram:	Eichelbaum CJ Thomas J Heron J
Appearances:	T W Fournier for appellant M N Zarifeh for Crown
Judgment:	30 March 1999

judgment of the court delivered by eichelbaum CJ

[1] An appeal against a sentence of 6 years imprisonment imposed in the District Court on a count of wounding with intent to cause grievous bodily harm (Crimes Act 1961, section 188(1) - maximum penalty 14 years) to which the appellant pleaded guilty on arraignment.

Description of Offending

[2] Late in the evening on 15 July 1998, the complainant was walking home from the central city.He had been drinking and did not have enough money to pay for transport.As the complainant went past a tavern, he was approached by the appellant and his two co-offenders, Hopkins and Charles, who were riding bicycles.They had consumed a mixture of alcohol and drugs and one of them asked the complainant for money.When he refused, they took the complainant to an overbridge.

[3] Once there the appellant and Hopkins held the complainant while Charles punched him in the face, knocking him to the ground.The three offenders then punched and kicked the complainant numerous times before stripping him and shredding his underpants and trousers.The offenders stole his bankbook and the 60 cents he had in his possession.They continued the assault, which included blows to the head and chest, and dragged the complainant naked for some distance.During this initial assault, which lasted about 40 minutes, the complainant lapsed into unconsciousness.While this was going on Charles left the scene and did not participate further.

[4] Hopkins then rode his bicycle to a friend's house and told the three occupants that he and the appellant may have killed someone.The occupants followed Hopkins back to the overbridge where they witnessed further assaults on the complainant.The appellant kicked the complainant several times in the chest before punching him in the leg and stomping on his right hand and ankle. Hopkins was also seen to kick the complainant and lift his head up before slamming it into the ground.After trying unsuccessfully to stop the offenders two of the witnesses left to call an ambulance.

[5] The appellant and Hopkins left the area on their bicycles but returned shortly afterwards.The appellant rode his bicycle over the body of the complainant, who was then dragged for 10 metres across concrete.Afterwards, the appellant twice lifted his bicycle over his head and dropped it on to the side of the complainant's body, striking him with the wheels, pedals and chain. The appellant and Hopkins rode away from the scene before the ambulance arrived.

Effect on Victim

[6] When emergency services arrived, they found the complainant suffering from severe hypothermia.He was admitted to intensive care at the hospital.The complainant's physical injuries included bruises, cuts and abrasions over most of his body, swollen arms and legs, two black eyes and cuts to his face and ear.He remained in hospital for 4 days.

[7] The incident has had a profound effect on the complainant.He is at present unable to discuss the events surrounding the assault and continues to be deeply traumatised.Although his physical injuries have healed, he continues to suffer from psychological and organic trauma linked to the blows he received to his head.The effects of the events have been such that the complainant is unable to live independently.He has been admitted as an in-patient to Sunnyside hospital, and is currently on medication to control his paranoia.He has short-term memory loss and suffers from post-traumatic stress.Hospital staff believe that although eventually the complainant may be able to live in the community, he will continue to require medication and treatment for the remainder of his life.

Age and Circumstances of the Appellant

[8] The appellant was aged 17 at the time of the offending.He regularly used both alcohol and cannabis and in his pre-sentence report accepted he required treatment and counselling for his addiction.The appellant has three previous convictions for burglary, possession of cannabis and unlawfully getting into a motor vehicle.He has no previous convictions for violence.The pre-sentence report noted he was an articulate and intelligent young man and linked his offending to boredom and substance abuse.

Sentencing

[9] The sentencing Judge observed that the assault constituted a deplorable and mindless act of violence.Aggravating factors included the joint attack by 3 different offenders, and the stripping of the complainant and leaving him naked and unconscious at the scene.The Judge accepted the Crown submission that the assault fell within the second category of offending involving serious violence identified by this Court in R v Hereora [1986] 2 NZLR 164, and attracted a sentencing range between 5 and 8 years imprisonment.The Judge considered the degree of the seriousness of the violence to be higher than as submitted by the Crown.

[10] Charles pleaded guilty to one charge of assault with intent to injure. Hopkins, like the appellant, pleaded guilty to wounding with intent to cause grievous bodily harm.The three co-offenders were sentenced together by the same Judge.

[11] Charles, who was aged 18 at the time of the offending, had several previous convictions including one for injuring with intent.The Judge noted that Charles' involvement in the incident was less significant than that of the other two but decided that his part justified the maximum sentence of 3 years on the lesser charge to which he had pleaded guilty.In consideration of the plea the Judge reduced his sentence to 2½ years.

[12] Hopkins, who was 16 at the time, had no previous convictions.The Judge viewed his culpability as slightly less than that of the appellant.The Judge also noted his age and the absence of previous convictions.Referring to the categories in Hereora, the Judge adopted a starting point of 10 years for both Hopkins and the appellant.The Judge allowed Hopkins a 3 year discount, taking account of his age and his degree of involvement.With a further allowance of 2 years for the guilty plea, he sentenced Hopkins to 5 years.

[13] The Judge viewed the appellant's degree of culpability as more serious than Hopkins' and also noted the differences between them in regard to age and previous convictions.The Judge adopted a starting point of 10 years, allowing a 2 year reduction in relation to the appellant's age and an additional 2 year reduction for his guilty plea.

Grounds of appeal

[14] Hereora, to which the Judge referred, is the leading tariff case for wounding or causing grievous bodily harm with intent.This Court adopted the English position where an impulsive act of violence involving the use of a weapon would attract a sentence of 3 to 5 years; a sentence of 5 to 8 years was appropriate where a combination of aggravating factors existed; and the presence of unusually aggravating features attracted up to 12 years.

[15] As this Court noted in R v Manoharan CA 287/98, 15 October 1998, these figures refer to the actual sentence imposed, not starting points. Counsel for the appellant submitted that the starting point of 10 years imprisonment, adopted by the Judge, was incorrect.While counsel accepted the offending fell within the second category in Hereora he submitted the Judge erred in selecting a starting point in excess of the second category range.

[16] We did not call on the respondent but in his written submissions counsel for the Crown argued that the aggravating features of the offending clearly placed it at the top end of the second category.In counsel's submission these factors included the unprovoked attack on a vulnerable victim, a group assault, the sustained and repetitive nature of the attack, the removal of the victim's clothing, the use of a bicycle as a weapon and the serious nature of the victim's injuries.Counsel also observed that even if the starting point was too high, the substantial allowances made reduced the sentence to an appropriate level.

[17] Secondly, counsel for the appellant submitted the appellant should not have been treated differently from his co-accused, Hopkins.The age difference (13 months) between the appellant and Hopkins was not significant.In addition, the appellant's previous convictions for non-violent offences should not have been considered relevant in the context of a violent assault.Counsel submitted that the Judge also erred in assessing the culpability of the appellant as being greater than Hopkins'.He pointed out there was no evidence to indicate the individual degrees of violence of each of the three offenders during the initial stage of the assault.Counsel submitted that either the appellant should have received the same sentence as Hopkins or the 1 year difference between them should be reduced.

Discussion and conclusion

[18] Having dealt with the background fully we can state our conclusions quite briefly.Given the facts recited, we scarcely need to emphasise that the offending involved outrageous conduct, which we add was entirely unprovoked. The sentencing Judge was right to see the event as requiring a severe sentence emphasising the punitive and deterrent aspects of sentencing.Regardless how the sentence was constructed, the bottom line, 6 years, cannot be criticised.

[19] There is nothing in the disparity argument either.Hopkins was entitled to credit for his previous clear record.For this and the other reasons relied on by the Judge there was a proper basis for a distinction between the appellant and Hopkins and in terms of R v Rameka [1973] 2 NZLR 592 the difference was neither unjustifiable nor gross.The appeal is dismissed.

Solicitors

Crown Solicitor, Christchurch