THE QUEEN v GRAEME PAUL BROWN [2002] NZCA 290 (21 November 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 221/02

THE QUEEN

V

GRAEME PAUL BROWN

Hearing:	14 November 2002
Coram:	Keith J Blanchard J Anderson J
Appearances:	N L Faigan for Appellant S P France for Crown
Judgment:	21 November 2002

judgment of the court DELIVERED BY ANDERSON J

[1] On 12 June 2002 the appellant was convicted on his trial before a District Court Judge and jury on one charge of wounding with intent to cause grievous bodily harm and two charges of threatening to kill.He was sentenced on 1 July 2002, the day on which the Sentencing Act 2002 came into effect.In reliance on s86 of that Act the Judge imposed a minimum period of imprisonment of four years.The District Court Judge imposed seven and a half years imprisonment on the wounding count and two years imprisonment on each of the counts of threatening to kill, all such sentences to be concurrent with each other but cumulative upon a sentence of 18 months imprisonment imposed on the appellant some three weeks previously.That sentence of 18 months imprisonment arose from two charges of assaulting police officers, refusing a request for a blood specimen and driving while disqualified.Each of those four counts had attracted a sentence of nine months imprisonment but the refusal to supply a blood specimen was imposed cumulatively.The appellant now appeals against conviction and sentence.

Circumstances of the offence

[2] The relevant facts are accurately and relevantly set out in the Judge's sentencing notes in the following terms:

The prisoner was found Guilty by verdict of a jury on one charge of wounding with intent to cause grievous bodily harm and two charges of threatening to kill.The short facts are that, on 2 November 2001, the prisoner was with a friend in Aotea Square, Auckland, at about nine o'clock at night.There were considerable numbers of people around, coming and going to different entertainment venues in the vicinity.There was a group of young people nearby.One of them, the principal complainant and victim, Joseph Tauiliili, heard shouting going on in the vicinity of the prisoner and went over to investigate what it was all about.The prisoner was shouting at a friend of his, Toby Brown, a well-known resident of the streets of Auckland.This prisoner, Graeme Brown, was also a resident of the streets of Auckland and had been living on the streets for some time.The prisoner took some exception to the appearance of Mr Tauiliili and lunged at him with a knife and stabbed him in the flank, that is, in the vicinity of his hips but on the side of his body, in the lower part of his torso.The knife wound thereby caused was one centimetre across and two centimetres deep.The prisoner continued to rant and rave, shouting out to people that they should not come near him because he was a soldier and that he had been in Afghanistan.A different youngish person was told by Mr Tauiliili that he had been stabbed and went over towards the prisoner, who then started shouting and waving his knife in front of him and making comments about being a soldier.There is no evidence that, in fact, the prisoner had been a soldier, at least in recent times, and he certainly had not been in Afghanistan.(He was found Not Guilty on a charge of assault with a weapon arising out of the waving of that knife, and I mention it only as part of the background narrative.)

Following that point the prisoner set off across Queen Street.One of the two who had been threatened with the knife, together with a second person, also crossed Queen Street but lower down from the prisoner.They did this in order to speak to a police officer.They warned this police officer that somebody had been stabbed in Aotea Square and that the person responsible was coming down Queen Street and was armed with a knife.They pointed him out to the constable.The constable acted with great presence of mind and persuaded the prisoner to take his hands out of his pockets and to keep them where she could see them.He kept trying to put his hands back into his pockets and she kept persuading him to leave his hands out in front of him and to follow her down the street towards a police wagon.Eventually she took him by the wrists when he was persisting in putting his hands back towards his pockets.She led him down the street, the constable walking backwards and the prisoner walking forwards, until they reached the police wagon.

Before getting there, the prisoner noticed the complainants, Karl Davis and Maynard Cash, being the two persons who had crossed the road and warned the police officer of the prisoner's presence.He started shouting threats at them, threatening to kill them, and was generally abusive to them and to the police officer.

The young police officer managed to use her body weight to swing the prisoner around up against the side of the van and, still holding on to his wrists, she leant against him while calling for help from an off-duty police officer in a nearby kebab bar.The prisoner was then able to be handcuffed.He was asked at some point by the first police officer what had happened in Aotea Square and he spontaneously replied, "I hope he fucking dies, I hope I fucking killed him".

Reasons for sentence

[3] The Judge noted that the appellant, at the age of 46, had a long list of previous convictions including many for anti-authoritarian type offences such as resisting Police, refusing to accompany enforcement officers and speaking threateningly.He had a large number of convictions for assault in one form or another, often being assaults on Police and in 1988 had received a sentence of three and a half years imprisonment for wounding with intent to do grievous bodily harm.A forensic psychiatric report, indications for which lay in the appellant's bizarre conduct, showed that he had a long history of heavy drinking but did not suffer from any major mental disorder.The Judge was plainly concerned with facets of the appellant's personality and conduct which indicated that he was a danger to public safety.The Judge noted that the appellant persistently interrupted the Court during the sentencing process and had to be removed to the cells.

[4] The Judge noted that the victim of the wounding spent a night in hospital, had three stitches in his side, was unable to attend work for a week until his wound healed, suffered damaged clothing and was now experiencing a loss of confidence in public places.

[5] In the Judge's assessment the offending was not at or near the most serious of its type and s8(c) and (d) of the Sentencing Act had no application in the particular case.He specifically had regard to s8(g), which requires the Court to impose the least restrictive outcome that is appropriate in the circumstances.

[6] With respect to s9 of the Act, the Judge identified as the only statutory aggravating factor that there had been actual violence and use of a weapon. However the s9 features are not exhaustive and the Judge also considered aggravating factors to exist in the expression of hope that the victim would die, the fact that the victims were unknown to the appellant, that the offending was unprovoked and that it occurred in a public place with a large number of members of the public around.He found no mitigating features in terms of the statutory stipulations in s9(2).

[7] The Judge placed considerable emphasis on public safety, expressing his concerns as follows:

I consider this matter a serious one, having regard to the aggravating factors that have been mentioned and having regard to the apparent personality problem that the prisoner has which causes him to come into conflict with other people and the law on a regular basis.I am also concerned at his history of violent offending, including a previous case of wounding with intent to cause grievous bodily harm.I believe that a sentence in this case must serve not only the principles of denunciation, deterrence and holding him accountable for his own conduct, but primarily, in my view, protecting the community from him by locking him away for a significant period of time.

The term of imprisonment which I impose in respect of this matter is a term of seven and a half years.I impose that having regard to the matters I have just mentioned.The factors uppermost in my mind are the need to protect the public from somebody with an apparently volatile personality and a propensity to violence using a weapon.

I have stressed the importance of the protection of the public, having regard to the nature of the offence, the circumstances in which it occurred and the prisoner's anti-social personality and, as judged from his previous record, his history of violence.

[8] The Judge then gave consideration to the question of a minimum period of imprisonment pursuant to s86 of the Act.In his view the element of public safety required a minimum period of imprisonment.Noting that in light of a sentence of seven and a half years imprisonment eligibility for parole after one-third would allow the appellant to apply after two and a half years, the Judge considered it quite inappropriate for the appellant to be possibly living on the streets of Auckland again in two and a half years time.Having regard to public safety considerations he accordingly imposed a four year minimum period of imprisonment.Because of its cumulative nature, as the Judge acknowledged, the minimum period would commence at a future date.

The course of the appeal

[9] The appeals were originally listed for hearing before a divisional court in Auckland.In the course of the hearing the question arose as to the possibility of the appellant being able to obtain evidence from other street living people in support of his contention at trial that someone, similar in appearance to him, but not himself, was the offender.Through counsel he referred to another Mr Brown and a Mr Midwood.It seemed appropriate to adjourn the hearing in order to allow counsel to make inquiries of these people.It was also expedient to adjourn the appeal against sentence to permit counsel to prepare considered submissions in light of the Sentencing Act 2002 which had quite recently come into force.

[10] Attempts on behalf of the appellant's counsel to procure the suggested evidence were unsuccessful.The other Mr Brown was receiving institutional treatment for alcohol related disabilities and had no helpful recollection of events.Mr Midwood appears to have given counsel information for inclusion in a draft affidavit and then drifted away somewhere.

[11] At the resumed hearing there was no acceptable evidence to place before the Court, still less qualities of freshness and cogency in terms of the established principles relating to the introduction of new evidence on appeal. This Court was left with no proper basis on which it could entertain material other than that presented at trial, the nature and treatment of which leaves us quite unpersuaded that the appeal against conviction has any merit at all.

Appeal against sentence

[12] Both the length of sentence and the imposition of a minimum period of imprisonment were challenged on behalf of the appellant.It was submitted that the offending was within the first category of relevant offending identified in R v Hereora [1986] 2 NZLR 164, thereby indicating a sentencing range of three to five years.We note that in the District Court the Crown submitted that the offending was on the cusp of the first and second categories, the latter giving a range of five to eight years.The inference to be taken from the Crown's submission in the District Court is that the nature of the offending might be expected to attract a sentence of five years imprisonment. But it seems the Crown also submitted that an effect of the provisions of the Sentencing Act 2002 might be the raising of sentencing levels generally.As we noted in R v Afamasaga CA 271/02 judgment 21 November 2002, we do not accept that.

[13] Counsel for the appellant submitted before this Court that a comparison between the instant case and recent similar cases such as R v Roycroft CA 312/01 judgment 4 September 2002 and R v Pikea AP 14/02 High Court Invercargill, judgment 21 August 2002, indicated that the present sentence was out of line.Roycroft was convicted on his trial of having deliberately driven a motor car at the victim.He had a previous conviction for manslaughter arising out of an incident of road rage in which an associate was convicted of murder.A five year term of imprisonment was reduced to four on appeal.In Pikea the offender received on appeal a sentence of three years imprisonment in respect of three counts of injuring with intent to cause grievous bodily harm involving stabbings.This case has a helpful review of similar cases.In light of these authorities the present sentence of seven and a half years imprisonment is incongruously high.

[14] As to the question of a minimum period of imprisonment counsel submitted that in light of this Court's exposition of the appropriate principles relating to s86, contained in R v Brown CA 238/02 judgment 25 September 2002, the Judge was wrong to apply a public protection test rather than a "sufficiently serious" test and accordingly erred in law because the present case could not be categorised as "sufficiently serious" and "out of the ordinary range of offending of the particular kind".

Crown's submissions on sentence

[15] Mr France, with his usual candour, careful analysis and reference to authority felt unable to support the imposition of a minimum period of imprisonment.As he noted, the learned District Court Judge did not have the benefit of this Court's decision in Brown at the relevant time.

[16] Concerning the length of the sentence counsel submitted that "it would be inappropriate for the Crown not to acknowledge that a total of nine years for the two lots of offending does raise a real issue as to excessiveness".

Discussion

[17] We are satisfied that the sentence of seven and a half years, cumulative on almost 18 months imprisonment cannot stand.Even allowing for the principle that considerations of public safety may justify sentencing towards the higher end of an available range we think the overall sentence in this case is manifestly excessive.

[18] The nature of the attack, involving alcohol fuelled irascibility and the use of a knife, had the potential for grievous, life-threatening injury but in the result, fortunately, fell distinctly short of that potential.We think the submission on behalf of the Crown at sentencing, namely that the offending was at the cusp of the first and second categories identified in Hereora, was correct and that subject to questions of totality a sentence of up to five years imprisonment might have been justified.But in this case the appellant was already subject to a sentence of 18 months imprisonment less approximately three weeks and when appropriate effect is given to the principle of totality we think that a cumulative sentence of four years imprisonment, but no more, was indicated.

[19] Accordingly: (1) we dismiss the appeal against conviction (2) we allow the appeal against sentence by quashing the order for a minimum period of imprisonment, quashing the sentence of seven and a half years imprisonment and substituting a sentence of four years imprisonment cumulative on the sentence of 18 months imprisonment to which we have referred.

Solicitors

Nigel L Faigan, Auckland for Appellant

Crown Law Office, Wellington for Crown