THE QUEEN v MARK GREGORY KIMBER [2000] NZCA 271 (12 April 2000)

IN THE court of appeal of new zealand

ca508/99

THE QUEEN

V

MARK GREGORY KIMBER

Hearing:	12 April 2000 (at Auckland)
Coram:	Thomas J Heron J Cartwright J
Appearances:	P J Kaye for Appellant K B F Hastie for Crown
Judgment:	12 April 2000

judgment of the court delivered by HERON J

[1] This is an appeal against sentence following the appellant's trial before a jury in the Tauranga District Court in August 1999.The appellant was charged with two offences, the first that on 12 September 1998 with intent to cause grievous bodily harm, wounded George Paru Pakaru, and secondly, on 12 September 1998, with intent to cause grievous bodily harm to George Paru Pakaru, caused grievous bodily harm.

[2] This was the second trial of the appellant.The first needs no comment other than the jury having being unable to agree on the second count at the second trial, a stay was entered in respect of that count.The jury found the appellant guilty of the first count and it is in respect of his sentence of four years nine months, that he now appeals.

[3] The events the subject of the charge occurred at flat premises where the victim and his girlfriend were spending the night.A third person at the premises was the girlfriend of the appellant's co-offender.Following a telephone conversation, between the co-offender and his girlfriend, the appellant the co-offender and one other person visited the premises, concerned it would seem, that the victim was in some way associating with the co-offender's girlfriend.This proved not to be the case, but in any event, having gone to the premises, the co-offender assaulted the victim, a young man of 22 years of age in a sustained and serious way including the use of a bottle, whilst the appellant watched on.At one point the victim appeared to have gained the upper hand over his assailant and on attempting to escape from the room was held back and returned to the room by the appellant.He was told that he had not had enough.

[4] It was alleged, that at a point where the victim gained the upper hand the appellant joined in kicking the victim causing him to loose the advantage he had gained whereupon he was again seriously assaulted by the other man.This incident was the subject of the second count.

[5] In order to escape from the assault the victim finally jumped out a window, dropping some distance and it would seem may have suffered further injuries. He was finally admitted to Tauranga Hospital with serious injuries, including injury to his knee.On the assault finishing the appellant threatened the two women on the premises to remain silent as to what occurred, or else.

[6] The sentencing Judge described his injuries as follows:

The complainant, who was 24 at the time, was an athlete and a sportsman of some ability and at the time of the incident he was working as a snow board instructor in Queenstown.As a result of the attack on him he had cuts to his face, his forehead, the centre of his scalp, the back of his scalp and above his left ear.In his victim impact statement he said he had 10 stitches to one of the cuts.After this incident the left side of his face was grossly swollen and his eye shut.He was in considerable pain and was given morphine on six separate occasions in the first 12 hours he was in hospital.He stayed in hospital for four days in all.Some head injuries still bear scars, which are visible and tender to the touch and he is embarrassed about those and the reaction that other people have to them.

The injury to his knee was at first thought to be moderate but as time progressed it was established that all three ligaments to his knee had been ruptured.He still does not have the proper use of his leg and remedial surgery is still required.In the meantime, he has been unable to return to his employment as a snow board instructor and he was out of work until recently.

[7] The principal assailant and the appellant's co-offender received a sentence of four years imprisonment.Aged 19, contrasted with the appellant's age of 35, he pleaded guilty.The Judge, in respect of that sentencing, having regard to R v Hereora [1986] 2 NZLR 164 CA, felt that the starting point for this assault with a weapon was five years.He had no previous convictions for violence.The appellant was a member of the Filthy Few gang and the younger man a prospect or associate.The appellant had a conviction for a serious assault in December 1993, for which he was sentenced to two and a half years imprisonment.

[8] The principal ground for appeal is the claimed disparity, between the sentence of the principal offender and this appellant.The position on disparity is expressed in R v Rameka [1973] 2 NZLR 592, where this Court said:

We take this opportunity to say something concerning disparity of sentence as a ground of appeal, because it has been raised in several appeals recently. It has long been the view of this Court that little help is gained by considering other sentences in respect of the same offence (R v Radich [1954] NZLR 86) or, indeed, other sentences imposed by other Judges or Courts on other offenders whose offences are in some way linked with those of the appellant. The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 Cr App R 191). In each case the whole of the surrounding circumstances and the situation of the offender have to be taken into account and, as this Court has said previously, these factors vary infinitely. But it is true that ther7e has been, of recent years, both in this country and in England, an increased willingness to take disparity of sentence into account when the disparity cannot be justified and is gross. See for example R v Pitson (1972) 56 Cr App R 391, and R v Kelly [1972] Crim L Rev 384; see also the unreported judgment of Beattie J in our Supreme Court in Police v Longley (22 September 1972.) As Lawton LJ said in Pitson;

"There is certainly no rule of law which says because one Court deals with one man more severely than another Court deals with another man involved in the same case, the first man should have his sentence reduced. On the other hand, this Court is alive to the fact that all Her Majesty's Courts are Courts of justice, and justice has got to be looked at in the light of the feelings of ordinary, sensible people and, in the end be just" (ibid, 396-397).

Having regard to these and other authorities dealing with disparity of sentence, this Court wishes to say that it will in special cases have regard to disparity as a ground of appeal against sentence, but only when the disparity appears unjustifiable and is gross.

[9] Reports before the sentencing Judge indicated that following the prison sentence referred to above, his response to parole and his life style generally had improved.He had not had any further convictions.He had settled into and maintained a permanent relationship and to a child of a former relationship who was ill, he had been attentive and thoughtful.Since his release from prison he was employed as a builder and had built his own house.Why he should have got himself involved in this event, is very difficult to explain other than by the obvious gang dynamic.It should have been an occasion where the older man restrained the younger man.There were a number of occasions where he could have exercised restraint but he failed to do so.In our view that is a very aggravating feature.The plea of guilty on the part of the principal offender, his age and the circumstances of the occasion, are to be contrasted with a mature man with a previous knowledge of the seriousness of such offending.

[10] The Judge on sentencing said:

While the jury could not agree on the second charge in the indictment which related to the allegation that you had kicked his knee and caused the injury to it, there is no dispute that his knee was injured on this particular night either during the course of the incident itself or when Mr Pakaru tried to escape.I take into account also that you have expressed no remorse for what happened to that young man.

I must take into account the parity between you and the co-accused Martin.He was sentenced by Judge Thomas on the basis that he had not inflicted the main injury, which was to Mr Pakaru's knee.You, I accept, must be treated in the same way given the jury's verdict on Count 2.Judge Thomas referred to the Court of Appeal decision in R v Hereora and as a result of that set the starting point for sentence at five years' imprisonment.Both counsel accept that that is appropriate and I accept that any sentence imposed on you can be no higher than that.The issue is whether it should be less.

Mr Mabey has submitted to the Court that the disparity in the relative culpability of you and Martin is considerable.He says that your culpability is far less than Martin's as you inflicted no injury on the victim and he asked the Court to accept that Martin was so determined on injuring Pakaru that it would have happened regardless of whether you were there or not.He also reminded the Court that much of the attack occurred before you threw the victim back into the room.

Mr Hollister-Jones for the Crown invites the Court to find that your culpability is equal to that of Martin on the facts as have been heard in this case.

I take the view that while you did not inflict any physical injuries on Pakaru yourself, you enabled the attack to happen by blocking help from getting to Pakaru and by confining the victim to the room where the attack was happening. I find that you ensured that the beating happened and continued.You stepped in when the victim broke free.You stepped in when the victim seemed to get the upper hand.In my view the relative culpability of you as compared to Martin may be marginally less.I go no further than that.

I take into account that Martin, unlike you, could point to his relative youth and the fact that he had no previous convictions for violence.I can give you no credit for pleading guilty because you did not.The complainant had to go through the trauma of giving evidence at trial.

[11] My Kaye was inclined to submit the sentence for the co-offender Martin was too high and a greater discount than one year should have been awarded.We do not agree.Whilst there were a number of mitigating factors, Martin's involvement remained the major one and his role is again appropriately described by the sentencing Judge here.

[12] We agree with the balancing exercise carried out by the Judge as detailed above.In our view the appellant's part in the offending was more than just observing and involved active participation.It also included intimidating and menacing conduct and the impact on the victim must be considered the combined result of the actions of both men.

[13] The appeal against sentence is accordingly dismissed.An appeal against conviction was not pursued and it too is dismissed.

Solicitors:

Crown Law Office, Wellington for Crown

P J Kaye, Auckland for Appellant