WILSON v R [2004] NZCA 60 (11 May 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 485/03THE QUEEN

v

MAJOR WILSON

Hearing: 26 April 2004

Coram: Chambers J Panckhurst J Laurenson J

Appearances: S K Green for Appellant
K Raftery for Crown

Judgment: 11 May 2004

JUDGMENT OF THE COURT

Introduction

[1] The appellant has appealed against a total sentence of 7 years imprisonment imposed by Judge Spear in the District Court at Hamilton on 28 November 2003.
[2] The sentence related to ten charges of various forms of abuse and dishonesty perpetrated against the same victim over a period of some seven months between May and December 2002. The appellant had pleaded guilty following a deposition hearing and after some charges had been reduced.
[3] The charges and the penalties imposed were:

	Offence	Crimes Act Section	Maximum Penalty	Penalty Imposed
	Injuring with intent to cause grievous bodily harm	s189(1)	10 years	5 years
	Injuring with intent to injure (x2)	s189(2)	5 years	3 years
	Assault with intent to injure	s193	3 years	2 years
	Common assault (x2)	s196	2 years	6 months
	Threatens to kill(x2)	s306(a)	7 years	2 years
	Using a Document with intent defraud	s229A(b)	7 years	2 years
	Theft	s227(c)	1 year	6 months

[4] The penalties for the offences (a) and (b) above were imposed concurrently within themselves i.e. a total of 5 years imprisonment. The remaining penalties were also imposed concurrently between themselves i.e. a total of 2 years imprisonment but cumulatively to those in (a) and (b) making a total effective sentence of 7 years imprisonment.

Factual background

[5] The victim was 18 years old at the time of the offending. He was a vulnerable person who had learning and other difficulties. He went to board with the appellant and his family on a relatively isolated farm in the Waikato district where he assisted the appellant who was managing the property.
[6] The statement of facts, which was ultimately accepted by the appellant, disclosed that over a period of some five months the appellant treated the victim inhumanly and dishonestly in the following respects.

• (a) Shortly after the victim arrived in May 2002 the appellant was given the victim’s Eftpos card to enable him to withdraw $50.00 per week for board. This card was not returned until the victim, in effect, escaped from the property on 22 December 2002. During the intervening period, the appellant took $2,655.70 from this account. He was unable to make reparation in respect to this amount.
• (b) Some time in July or August 2002 the victim’s parents sent him a cellphone worth $269 which belonged to his mother. This was to enable him to keep in touch with his parents. The appellant took the phone, changed the SIM card and kept the phone. The victim was too scared to ask for the phone to be returned to him.
• (c) The first assault apparently occurred shortly after the victim arrived. However, during the period 1 September 2002 until about 15 October 2002 the appellant assaulted the victim on a daily basis in a small bach occupied by the victim near the appellant’s home. The assaults consisted of punching the victim four or five times on the arms, legs, back or stomach, and often leaving him with bruising. The victim had no idea why he was subjected to this behaviour. He told the police he thought the appellant had got into the habit of doing so.
• (d) The first assault, which was the subject of a specific charge, apparently occurred on a Friday night between 5 July 2002 and 27 July 2002. The appellant and the victim had gone to a hotel. At some point, and for no clearly defined reason, the appellant hit the victim four or five times in the facial area leaving him with black eyes and bruising.
• (e) On an occasion between 27 October 2000 and 10 November 2002 the appellant again assaulted the victim who then ran from his bach. He was chased by the prisoner and then punched all over his body about thirty to forty times. No reason was given as to why this assault took place.
• (f) On the afternoon of 24 November 2002 the victim, the appellant, and the appellant’s nephew were all milking on a property. After milking had finished the appellant began to hose the victim with the high-pressure hose because he was angry with him taking so long to clean up. He then began assaulting the victim by punching him to the back of the head which made the victim feel dizzy. After the initial punch the appellant’s nephew also punched the victim once. Shortly afterwards, the appellant got a hammer from the vat shed and threw it at the victim. Fortunately, it missed. The victim tried to run away but the appellant came up behind him and hit him on the back with the hammer which had the effect of knocking him to the concrete yard. After falling to the ground he was hit further with the hammer around the back, shoulders and arms about fifteen times. While he was still lying on his stomach, the appellant, who was wearing steel-capped gumboots jumped with both feet on to his head, splitting the victim’s eyebrow open after it hit a piece of jagged concrete. He then lost consciousness. After he regained consciousness the appellant told the victim to clean himself up. At that stage the victim could not open his left eye. As a result, he has a permanent scar over his left eyebrow.
• (g) On another occasion the appellant came into the bach in an angry mood because he had not been able to withdraw money from the victim’s account. He was carrying a full-length crowbar. He proceeded to hit the victim on his left thigh with the crowbar causing him to fall to the ground. The appellant stood over him grinning. As a result, the victim had a large lump and bruising on his leg.
• (h) On 18 December 2002 the victim was at the appellant’s home. The appellant told him to get a dog collar off his pet dog and a piece of rope. He was then told to put on the dog collar to which the appellant attached a nylon rope. He then pulled the victim into his bach, stood him in the corner and started punching him in the face while holding him by the collar. He continued to do so when holding on to the rope. The appellant’s nephew then began to kick and punch the victim. This was followed by the appellant punching the victim about the ears, six or seven times to the right ear and about five or six times to the left ear. Both ears became swollen and sore. The appellant then took the victim for a walk to the roadway so that, according to the appellant, people could see him with a dog collar on. This continued for about half an hour while motorists drove past. The victim was then told that he had to wear the dog collar overnight to show respect for the appellant. The victim did as he was told because he was frightened of the appellant. The following morning he was allowed to take the dog collar off.
• (i) On 20 December 2002 the appellant and victim were together in the appellant’s home. The appellant told the victim that he was tempted to take him into the Kaimai Hills and “knock him off” as he knew the area and nobody would know. The victim remained silent and believed that the threat could be carried out.
• (j) On 22 December 2002 the appellant told the victim that if he contacted his parents either he or one of his family would kill the victim. He also told him that he would have to move out of New Zealand because he had family everywhere and if he got sent to jail then he would come after the victim and kill him when he got out.
• (k) At about midday the same day the victim’s mother and grandmother drove up to the appellant’s home. The victim called out to them and left with them leaving clothing and personal items at the appellant’s home. He was admitted to Middlemore Hospital later the same day where he received medical attention. Multiple bruises, abrasions, cuts and swelling were noted on the victim’s body by medical staff.

[7] During the period whilst the victim was under the control of the appellant his weight fell from 82 kilograms to 63 kilograms.
[8] We have referred in some detail to not only the nature of the particular offences but also the extent of them, and the period over which they were committed. We have done so because we consider that it is important to take all these factors into account in order to fully comprehend the magnitude of the offending in this case.
[9] The Judge recognised that this was necessary when considering sentence. He referred to the offending as “very serious offending indeed of its type. On one view it could be considered akin to bullying but it is at such a high level of seriousness in relation to the viciousness that was ever present that I have to say it can easily be characterised appropriately as a prolonged ordeal close to torture”.
[10] The Judge also referred to the “horrible ordeal” which the victim was subjected to and which amounted to a shocking breach of trust which kept the victim “in fear of his life virtually as a prisoner for a period of some five months. He did not know where to go for help”. And, at para [20]:

It is fortunate indeed that the physical injuries that he suffered are in the main not permanent. However, the severe emotional harm that you have done him will stay with him forever. It is difficult to see how anyone could ever recover fully from an ordeal such as this. You subjected him to a prolonged and sadistic ordeal of some five months standing.

[11] We consider the Judge correctly identified the full extent and nature of the offending in this case.

Grounds of appeal

[12] There were three grounds of appeal. The first was that the sentencing starting point of 8 years was manifestly excessive. It was submitted that the result was to effectively place the offending at the highest possible end of the second category of offending referred to in R v Hereora [1986] 2 NZLR 164 at 170 i.e. five to eight years, which is reserved for cases exhibiting a combination of aggravating features.
[13] Whilst Ms Green, for the appellant, accepted that the totality of the offending in this case did include significant aggravating features namely, the use of a weapon, multiple assaults, the particular vulnerability of the victim, abuse of trust and the appellant’s extensive previous convictions, she submitted these did not justify placing the offending at the highest end of this category. Reasons given for this were, first, the injuries actually caused to the victim did not call for this level of condemnation, and, secondly, there were some mitigating factors which justified a lower starting point.
[14] Taking these matters into account it was submitted that when the Judge imposed the total net term of 7 years imprisonment after allowing a deduction of one year for the pleas of guilty, the process became flawed because the Judge failed to stand back and look at the total sentence to see if the cumulative sentences had not added up to a sentence which was excessive.
[15] The Crown submitted in reply that the combination of aggravating features could be characterised as being unusually grave in terms of Hereora. In particular, the most serious assault when the victim was rendered unconscious, was in no way an “impulsive act of violence” but rather, it was part of a deliberate and extended abuse of the victim without any apparent reason. Viewed in this light, the total offending reached the third category referred to in Hereora thereby justifying a starting point of 8 years. The Crown supported the way in which the Judge had made use of cumulative and concurrent sentences, but said that in any event the starting point and the overall end result were correct.
[16] The second ground of appeal related to what was submitted to be the Judge’s failure to give adequate recognition to first, the appellant’s expression of remorse and apology which was tendered at the time the pleas of guilty were entered, and secondly, the evidence provided as to the appellant’s good character in recent years. The Judge had stated that he had “some difficulty with the explanation [for the change of pleas during the course of the deposition hearing]. It seems far more probable that your change of pleas came because the complainant was able to articulate the offending”. This was submitted to be an illustration of a disregard by the Judge of the mandatory requirement under s9(2)(f) of the Sentencing Act 2002 namely, that remorse be taken into account as a mitigating factor. The appellant submitted that there was no proper basis for the Judge to conclude as he had “you are more remorseful for shame brought on your family and that you are going to be separated from them for a long time”. Counsel at sentencing had submitted that the remorse was genuine and that this appellant’s apparent intellectual disability in expressing himself had affected the probation officer’s view of the remorse expressed to him, which was, in turn, apparently adopted by the Judge.
[17] The Crown submitted that the expression of remorse was made only after the victim had been able to competently express the extent of the offending at depositions, and then, only to secure the appellant’s own ends. In any event, an expression of remorse in relation to a long course of ill treatment carried less weight than would be the case if only one instance of abuse had occurred. Realistically, the remorse expressed had to be considered within the context of the probation officer’s assessment of the appellant as a high-risk offender with low motivation to address his offending.
[18] The third ground of appeal was based on what was submitted to be an inadequate allowance for the pleas of guilty. The allowance of one year amounted to a twelve percent reduction and should have been in the order of twenty percent in order to recognised the worth of the pleas in the present case but also to encourage the proffering of guilty pleas generally.
[19] The Crown response was that the Judge had made a proper assessment of the worth of the pleas in the circumstances of this case. It was noted that whilst the victim had been saved the trauma of giving evidence at trial, he had still been required to do so at depositions.

Discussion

[20] As to the first ground of appeal we consider that whilst the categories of offending identified in Hereora provide some guidance in cases involving violence, these are addressed primarily to cases of single instances of violence albeit instances where there may have been repeated acts of violence within the one instance. This was not, however, the position in this case where the violence coupled with dishonesty occurred over a period of five to seven months. The fact that the abuse of the victim occurred over such a period, incorporating as it did so many aggravating features, served to define the present case as coming within a distinctly different category of offending namely, those cases characterised by prolonged physical and mental abuse of vulnerable victims by persons to whom their welfare had been entrusted. Extreme examples of this type of offending are R v Witika [1993] 2 NZLR 424, and R v Filimoehala (CA 367/99, 16 December 1999). The victims in each of those two cases both died, and the level of violence in both cases was undoubtedly worse than in the present case. They illustrate, however, the evil associated with prolonged physical and mental abuse, characteristics which the Judge was bound to give great weight to when sentencing the appellant. We consider that in selecting the starting point of 8 years the Judge recognised appropriately the level of seriousness involved in this case.
[21] The second ground of appeal amounted to a submission that the Judge should have further reduced the net sentence to recognise the remorse and apology expressed by the appellant after the pleas of guilty had been entered.
[22] The Judge considered the evidence of remorse, but in the end concluded that it was worthy of little weight. In reaching that view, the Judge took into account the views of the probation officer who had interviewed the appellant. The probation officer had noted that the appellant “did not express any remorse or regret for his offending, or empathy for the victim”. He had assessed the appellant as a high-risk offender whose “motivation to change is at best described as low”. The Judge was entitled to reach the view that the alleged remorse was not genuine. Section 9(2)(f) of the Sentencing Act does not require the sentencing Judge to reduce the sentence whenever an offender purports to show remorse. It is for the sentencing Judge to form a view as to whether any remorse exhibited is genuine. Even if it is, it is for the sentencing Judge to determine what weight, if any, should be given to that expression of remorse. Section 9(2) expressly states that the mitigating factors listed are to be taken into account only “to the extent that they are applicable in the case”.
[23] Ms Green submitted that the appellant was “a simple man and probably has some intellectual disability making it difficult for him to communicate effectively”. She said “it was likely the appellant’s limitations and development affected the probation officer’s view on this matter of remorse”. So far as we can see, there is no evidence to support that submission. We are not persuaded that the Judge was not entitled to reach the view on this topic that he did.
[24] As to the third ground of appeal namely, the criticism of the allowance made for the pleas of guilty. We note for a start the comment made by this court in R v Beri [1987] 1 NZLR 46 at 48:

A guilty plea may properly be taken into account and often merits some allowance in a sentence; but the Judge is not always bound to make an allowance for such a plea, especially where there is no real reason to regard it as reflecting any contrition.

[25] It is now well recognised that the allowance to be made for a plea of guilty calls for an assessment by the sentencing Judge of the circumstances surrounding the plea. Such factors as the timing of the plea, and the likelihood of conviction, are amongst the factors which have to be evaluated. Quite apart from the impact on the particular trial, and the victim involved, there is the desirability in the public good of encouraging pleas of guilty. The Judge in this case did consider the impact on the victim but notwithstanding his assessment of the extent to which the appellant was contrite, nevertheless allowed a deduction of one year. Having considered the exercise of this discretion in this particular case, we do not consider that the assessment of the appropriate reduction was inappropriate.

[26] Finally, we deal with Ms Green’s suggestion that the Judge failed to stand back and look at the total sentence. With respect, we reject that criticism. The Judge clearly did apply the totality principle. He expressly said that, having regard to the totality of the offending, he considered that a term of seven years was appropriate to mark the seriousness of the offending overall. He then assigned specific sentences to each of the charges. That process cannot be criticised; it was entirely logical. The Judge chose a combination of cumulative and concurrent sentences. That too was appropriate. Other combinations would have been possible, but certainly no one could criticise the Judge’s methodology in this respect. The Judge’s sentence did take into account the totality principle.

Decision

[27] Having considered each of the three grounds of appeal, and having found against the appellant on each, we find accordingly that the appeal must be dismissed.

Solicitors:
Crown Solicitor, Auckland