The Queen v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (27 March 2003)

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The Queen v Wharton [2003] NZCA 63 (27 March 2003); (2003) 20 CRNZ 109

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA374/02THE QUEEN

v

NIGEL MURRAY WHARTON

Hearing: 24 March 2003

Coram: Anderson J Baragwanath J Gendall J

Appearances: S J Lance for Appellant
K Raftery for Crown

Judgment: 27 March 2003

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1] The appellant was convicted after a jury trial in the Rotorua High Court of kidnapping his former partner. He had pleaded guilty to assault with intent to injure her, which occurred shortly before the kidnapping events. He was sentenced to 2½ years imprisonment on the charge of assault with intent to injure, and 4½ years on the count of kidnapping. He appeals only against the sentence of imprisonment on the kidnapping charge.
[2] The essential facts are that the appellant and his victim had been in a relationship for about seven years. It became a violent relationship and a protection order was obtained by the victim. On 26 July 2002 the appellant was arrested for assault, breach of a protection order and threatening to kill her. He had not been dealt with, but was on bail in respect of those charges, at the time this offending occurred. It arose in the following way.
[3] On 6 August 2002 he lured his victim back to his home under a false pretence that her young son was in some difficulty. His motive was to persuade her to return to him but she would not do so. When she attempted to leave he forced her head onto a concrete floor and stuffed blocks of wood into her mouth to stop her screaming. He kneed her in the face several times and smashed her head forcibly against the side of the house. He took her into the house and as she had been rendered powerless to resist or depart, she was kept there on a bed overnight too frightened to leave. The following morning the victim was taken from the home by a family member and medical treatment followed.
[4] The sentencing Judge expressed the view that he thought the appellant had detained the victim overnight because of the earlier court appearance on 26 July 2002, arising out of threats to kill and assaults within recent weeks. Subsequently, on 29 September 2002 the appellant was dealt with in respect of the earlier charges of threatening to kill, contravention of a protection order and assaulting a female, and he was sentenced to supervision and a suspended term of 6 months imprisonment on the charge of threatening to kill.
[5] When the appellant was later sentenced on the present charges on 31 October 2002, the Judge outlined the facts and said that he did not accept the submission of defence counsel that the kidnapping was at the “lower end” of the scale. The Judge said that he found:

...that the detention occurred with this background of significant aggression and violence. You had already threatened to kill her several weeks previously. It is little wonder therefore that she would be in a position after you had so seriously assaulted her [of] being too scared to move.

[6] The Judge referred to the serious injuries sustained by the victim in the assault and accepted the Crown submission that the kidnapping was the “lead offence” but:

If there was any doubt about the matter, then at the end of the day I am fortified by looking at the overall totality of your offending when I determine your sentence.

[7] Aggravating features included the extensive previous criminal record of the appellant; the crimes against the same victim in July 2002; the offending occurred whilst on bail; the extent of harm to his victim; his luring of a vulnerable victim to his home on the pretext that something was wrong with her child. The Judge referred to the only mitigating feature as being the plea of guilty on the charge of assault with intent to injure, and noted the probation officer’s pessimistic assessment that the appellant had little insight into his offending and any benefit of rehabilitative intervention appeared to be limited.
[8] Counsel for the appellant argued that a sentence of 4½ years imprisonment on the charge of kidnapping was manifestly excessive because in terms of the Sentencing Act 2002 (s85(1)):

Where a court is considering imposing a sentence of imprisonment for two or more offences the individual sentences must reflect the seriousness of each offence.

And further:

That if concurrent sentences are imposed the most serious offence must be that which received the penalty appropriate for the totality of the offending (s85(4)).

[9] Mr Lance argued that the most serious offence in this case was the assault and not the kidnapping. Therefore, he said, because that offence carried a maximum sentence of 3 years imprisonment, it was wrong for the Judge to increase the overall sentence by adopting the count of kidnapping as being the lead charge. It was argued that the kidnapping was at the lower end of the scale being neither for financial gain, nor to facilitate the commission of another offence, nor gang related, nor involving home invasion or weapons. He submitted the need for a deterrent did not arise, there being no threat to public safety, the sentence of 4½ years had to be reduced to reflect the circumstances of the kidnapping itself.
[10] The Crown’s position was that the sentence of 4½ years was warranted so as to reflect the overall criminality of the offence and offender, with the serious assault being an integral part of the kidnapping. Mr Raftery emphasised the aggravating features, already referred to. He submitted that the violent commencement of the kidnap, and the extended period of detention of a helpless woman did not place the kidnapping at the lower end of the scale.
[11] There can be an infinite variety of circumstances which underlie the crime of kidnapping. Some may relate to the abduction of citizens to be held for ransom (for example, R v McFelin [1985] 2 NZLR 750); others may involve gang activity for the collection of proceeds of crime or for financial extortion (for example, R v Ratana and Sole CA357/90, CA358/90, 25 February 1991; and R v Moffatt CA193/01, 30 October 2001). Many are an adjunct to or part of sexual criminal offending (for example, R v R CA59/99, 15 June 1999) and others, regrettably becoming more common, are part of the activity of a former spouse or partner who defies a protection order and detains a fearful, often battered and helpless female ex-partner for motives of power, revenge, jealousy or irrational anger (for example, Solicitor-General v Nahu CA309/98, 28 October 1998; Solicitor-General v Green CA179/99, 29 July 1999; and R v Gurnick CA287/02, 23 October 2002).
[12] The present case clearly falls into the last category. It is no less serious because of its grouping. Commonplace elements such as physical and emotional abuse and constraint by a violent, abusive partner in breach of a protection order do not allow Judges to treat such cases as being anything other than serious. In this case it involved prolonged and lawless invasion of the rights, dignity and integrity of a woman powerless to resist him with any resistance being broken by his assault, earlier threats and intimidation, together with his history of violence. Attendant upon that was his offending whilst on bail, the abuse of a possession of trust in relation to the woman and the risk of re-offending. All of those factors are applicable in this case, in terms of s9 of the Sentencing Act 2002.
[13] But in the present case it is hard, if not impossible, to discern when, objectively viewed, the period of detention ceased. From the appellant’s point of view it may have been early in the course of events, as he went and had a bath and took what he intended to be an overdose of pills. From the victim’s point of view, however, she could not depart through fear and having been rendered, she felt, helpless by the appellant. The jury’s verdict is not able to settle that point and the sentencing Judge made no finding upon it. But the fact remains that the detention followed on upon a violent and serious assault upon the victim, the consequences of which rendered her incapable of leaving when possibly she might otherwise have been able to do so. The emotional state and equivocal actions of the appellant over the night do not lessen the seriousness of his actions, but may place them into perspective.
[14] It has been long established that the court may take into account facts and circumstances, which might of themselves constitute separate offences, in order to determine the gravity and appropriate punishment for an offence for which an accused is charged and convicted; Lane v Auckland City Council [1975] 1 NZLR 353 (CA). The principle was recently emphasised by this court in R v Pattison [2002] NZCA 152; (2002) 19 CRNZ 407, that even though factors of aggravation may constitute separate offences it does not mean that they cannot be considered as part of the sentencing exercise.
[15] In terms of s85 of the Sentencing Act 2002 the court was required to consider the totality of the offending, and whilst the most serious offence might normally be that which carries the greatest maximum penalty it may, however, be only becoming a more serious offence through the totality of circumstances surrounding it which, as in the case here, involved the commission of the so-called lesser offence of assault with intent to injure.
[16] The review of some of the sentences imposed, or upheld, by this court for kidnapping which broadly comes within this category encompasses a wide range as illustrated in Solicitor-General v N CA308/98, 28 October 1998, 5 years imprisonment; R v Wilson CA15/01, 29 May 2001, 6½ years imprisonment; R v R (supra) 7 years imprisonment, although there were counts of sexual violation involved in the totality of that offending; R v Gurnick (supra) 3 years 6 months imprisonment; Solicitor-General v Green (supra) 3 years imprisonment; and Solicitor-General v Nahu (supra) 3 years 6 months imprisonment.
[17] We do not think that the circumstances of this case, serious as they are, can put it into the class of case where starting points in the range of 5-6 years could be contemplated. It falls rather more within the type of case of Nahu, although that was a Crown appeal. There, as in the present case, the appellant had also been charged with sexual violation by rape on which he went to trial and was acquitted. He, however, did plead guilty to kidnapping and causing grievous bodily harm with intent. There are some common features of prolonged violence, detention overnight and a history of assaults upon a female. In allowing the appeal the original sentence of causing grievous bodily harm with intent was increased to a sentence of 5 years, but the sentence of 3½ years imprisonment on the kidnapping charge, to be served concurrently, remained. Similarly in Solicitor-General v Green (supra) this court imposed a sentence of 3 years imprisonment for kidnapping which was associated with assaults and breach of a protection order.
[18] In the present case the term of 4½ years imprisonment was, in our view, excessive when measured against other sentences for kidnapping and detention in relatively comparable cases. Detention of ex-partners or ex-spouses are no less serious than detention of others and deterrent sentences are required for offenders who terrorise former female companions through kidnapping, threatening, assaulting and the like. Nevertheless the aggravating features in this case do not take it into the category of cases, to which we have referred, which require a sentence in the range of 4-5 years imprisonment. The sentence of 4½ years imprisonment was beyond the permissible boundaries. We think that the appropriate sentence to reflect the totality of the crimes was a term of 3½ years imprisonment on the charge of kidnapping.
[19] Accordingly the appeal is allowed and the sentence of 4½ years imprisonment quashed and a sentence of 3½ years imprisonment substituted in lieu.

Solicitors:
Lance & Lawson, Rotorua for Appellant
Crown Solicitor, Auckland