THE QUEEN v LINDSAY CHRISTIANSEN [2000] NZCA 298 (24 October 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca146/00

THE QUEEN

V

LINDSAY CHRISTIANSEN

Hearing:	16 October 2000 (at Auckland)
Coram:	Tipping J Anderson J Fisher J
Appearances:	J E Boyack for Appellant B H Dickey for Respondent
Judgment:	24 October 2000

judgment of the court DELIVERED BY ANDERSON J

[1] On 27 April 2000 the appellant was sentenced in the District Court to three years imprisonment following his plea of guilty to one count of injuring with intent to injure.He now appeals against sentence on the grounds of unjust disparity compared with a sentence of 20 months imprisonment imposed on a co-offender, one Justin Higgins.The conduct in respect of which the appellant and Higgins were convicted related to the unlawful detention of and violence to a man who was suspected of having stolen money from Higgins' house.

[2] On 13 October 1998 the victim had been visiting Higgins at an address in Ponsonby.Some time after the victim left Higgins decided that the victim had taken $15,000 from the house.He went looking for the victim and found him at a house in Grey Lynn.After accusing the victim of stealing the money he punched the victim several times about the face and head and then coerced him into returning to Higgins' house.There the victim was punched and threatened for many hours by Higgins and a number of his associates.One of the associates threatened violence might be done to the victim's wife if the money were not recovered.Higgins was plainly complicit in the threats and violence to the person whom he thought had stolen from him.

[3] After many hours he got in touch with the appellant, who is and has for many years been a professional boxer.Plainly the appellant was called in to reinforce the threat to the victim's safety if he did not come up with the money.The appellant and Higgins punched the victim about the head again and bound his hands and feet with tape.The appellant, albeit barefooted, kicked the victim on the back of the head.He and Higgins then dragged the victim to the rear of the property and beat him about the body with wooden sticks. Higgins then left but the appellant remained with the victim, whom he tied up further with an electric extension cord before continuing to beat him.Later Higgins returned and he and the appellant put a blanket over the victim's head and left him lying on the grass in the rain with the threat that he would stay there all night if he had to.They then tried to wash the victim's blood off his face and body with a hose.During the long course of the assault Higgins took $130 in cash from the victim's jeans.

[4] Later the victim was placed in a chair near the back door where he was left for an hour and again subjected to threats, both to him and to his wife. Eventually the appellant and another person drove the victim to Auckland Hospital where they left him, but not before warning him to say that he had been beaten up in downtown Auckland.

[5] As a result of the violence the victim suffered bruising, lacerations and swelling to his face and head.He required 15 stitches to his face and also stitching to his elbows.For two weeks he could not walk without crutches. There is at present a residual numbness in parts of his cheeks and he is left with permanent and obvious scarring beside his nose and on his left cheek.The trauma he suffered was such as to feel forced into selling his family home in Auckland.The sentencing Judge characterised the conduct as mindless and unrestrained violence against a man who was unable to defend himself, conduct for which there could be no justification under any circumstances.

[6] Although originally charged with more serious offences, the appellant was ultimately convicted following a guilty plea and sentenced on injuring with intent to injure, and Higgins was sentenced following guilty pleas to a count of kidnapping and assault with intent to injure.The kidnapping by Higgins must be taken, in view of the fact that no similar charge was laid against the appellant, as relating to the coercion on the victim to go from the Grey Lynn house to the Higgins residence, and perhaps encompassing also the restraint of the victim for several hours until the appellant was called in.Even on such a restricted basis the kidnapping was of a serious nature, with the threats and violence inflicted until the appellant arrived at the premises being particularly aggravating elements of the kidnapping.However, when Higgins was sentenced, by the same Judge who sentenced the appellant a week or so later, the kidnapping was treated as if it were a mere and non aggravating element of conduct by Higgins amounting to assault with intent to injure.

[7] The helpfully succinct submissions of counsel for the appellant is that whereas the sentencing Judge considered the appellant's conduct warranted a starting point of four years before any allowance for the guilty plea, the Judge considered Higgins' arguably more serious conduct involving two charges, one of which was kidnapping, as warranting a starting point of two years less any discount for the guilty pleas.This comparison, in counsel's submission, discloses an unjust disparity, justifying intervention on appeal in accordance with established authorities such as R v Lawson [1982] 2 NZLR 219.The test for intervention is whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[8] It is not contended that the sentence imposed on the appellant is clearly excessive.On its own it is plainly within an acceptable range for the violence inflicted on the victim.Nor is any issue taken by the appellant with the reduction from four years imprisonment to three.

[9] The issue of unjust disparity requires an examination of the respective culpability of each offender in connection with the offence and of each offender in terms of relevant personal circumstances.The sentencing Judge, when dealing with Higgins, expressed difficulty in seeing why it was that the Crown saw fit to charge him and the appellant with different offences:-

... because it seems to me that in essence their culpability was much the same.

[10] He felt obliged, however, to give recognition to the fact that Higgins had actually been charged with a lesser offence, namely assault with intent to injure, compared with the appellant's offence of injuring with intent to injure, and that the maximum sentence for assault with intent to injure was three years imprisonment.

[11] It is, with respect, difficult to accept that the appropriate sentencing range for Higgins was circumscribed by the maximum penalty for assault with intent to injure.The Judge felt constrained because he was of the expressed view that the kidnapping charge was one which ought not to have been laid and ought be regarded as simply part and parcel of a prolonged assault.However, the combination of charges permitted the sentencing Judge to adopt a starting point appropriate to the totality of Higgins' criminality.That should have been comparable to the starting point adopted for the appellant.Because this course was not followed Higgins now has the benefit of a sentence which inadequately reflects his culpability.The starting point of two years imprisonment was simply too low.

[12] This Court is therefore faced, as it was in R v Thompson & Pullen-Burry, CA245/98, CA267/98, 22 December 1998, and R v Ryder, CA116/98, 23 June 1998, with the question whether reducing a proper sentence imposed on one offender in order to bring it into line with the sentence imposed on a co-offender would itself cause public concern at the administration of justice.This is not to say, however, that there were no distinguishable mitigating factors in Higgins' case justifying some disparity.It is the extent of disparity coupled with the objective leniency in Higgins' case which causes concern.

[13] The appellant has a long history of offending and his record includes 11 offences for violence of one sort or another.He has been imprisoned before and yet, notwithstanding that he is now in his late 30's and has suffered custodial sanctions, he still could not restrain himself from participating in the violence in question.Higgins' history involves fewer offences, significantly less violence, and no former full time custodial sentence.

[14] The points of distinction between the personal circumstances of the offenders was rightly emphasised by the Crown.There is plainly a justification for imposing a firmer sentence on the appellant than on Higgins having regard to the greater subjective need for deterrence in the light of his history.The Crown also expressed concern, in terms of the appearance of justice, about reducing to inappropriate leniency a sentence which is disparate with another inappropriately lenient sentence.

[15] In circumstances such as the present an appellate Court can seek to do justice by permitting some amelioration of the higher sentence in order to reduce the scope of the disparity.There can, of course, be no suggestion of reducing the sentence to exact comparability because to do so would itself give proper cause for concern in terms of the appearance of justice.Having regard to these matters we consider that the appeal should be allowed to the extent of reducing the sentence by six months.

[16] The appeal against sentence is accordingly allowed.The sentence of three years imprisonment is quashed and a sentence of two years six months is imposed in lieu.

Solicitors:

James E Boyack, Auckland, for Appellant

Crown Solicitor, Auckland, for Respondent