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The Queen v Griffiths [2006] NZCA 259 (18 September 2006)

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The Queen v Griffiths [2006] NZCA 259 (18 September 2006)

Last Updated: 4 October 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA77/06

THE QUEEN

v

MARK GEORGE GRIFFITHS

Hearing: 29 August 2006

Court: William Young P, Panckhurst and Ronald Young JJ

Counsel: R G Glover for Appellant
J A Farish for Crown

Judgment: 18 September 2006 at 11 am

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is allowed. The six year term is to be served on a concurrent rather than a cumulative basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

This case

[1] The appellant initially attacked his victim with a sharp instrument and caused a significant cut to the victim’s side. The victim tried to escape, but he was chased, knocked to the ground and rendered unconscious from several blows, including kicks. Judge Doherty in passing sentence said that the victim "received a severe beating".
[2] The background to the attack was a relationship which the victim had formed with a prostitute. She was also the appellant’s fiancée. Despite her profession, the relationship between the victim and the young woman was not a sexual one in the usual sense of that phrase. She assisted him in relation to certain fetish behaviour. On the relevant day, 13 March 2003, they were together seeking to procure drugs. There was a disagreement. The young woman fled from the victim’s car to the appellant’s flat. She was pursued. The appellant was made aware of what had just occurred and attacked the victim outside his flat.
[3] Eventually, the appellant pleaded guilty to offences of wounding with intent to cause grievous bodily harm and assault with intent to injure. The appeal is against a sentence of six years imprisonment, comprised of five and a half years for the wounding and six months cumulative for the assault. Broadly, the case raises two issues:

• whether an effective sentence of six years imprisonment was clearly excessive,

• whether the accumulation of the six year term upon earlier sentences gave rise to a total sentence which was disproportionate in terms of the totality principle.

The second aspect of the appeal is considerably complicated by a convoluted history of offending, release on parole, further offending, a recall of the appellant to prison and two further sentencings, the last of which is the subject of this appeal.

[4] The appeal was filed out of time. The six year sentence was passed in March 2004. The notice of appeal was filed in February 2006. An extension of time is opposed by the Crown. We shall return to the issue of leave once we have considered the substance of the two grounds of appeal.

Was a sentence of six years imprisonment clearly excessive?

The facts were in dispute

[5] Although the appellant belatedly entered pleas of guilty to a charge under s 188(1) of the Crimes Act of wounding with intent to cause grievous bodily harm and to assault with intent to injure under s 194, he did so on the basis that the background facts remained in dispute. There was, therefore, a disputed fact hearing before Judge Doherty.
[6] Evidence was given by the victim and by the prostitute. They gave differing accounts as to the nature and extent of their relationship. The appellant did not give evidence.
[7] With reference to the circumstances of the attack the prostitute said that the victim pursued her back to the appellant’s flat and she told the appellant of the disagreement which had just occurred (including that the victim was infatuated with her). The victim then banged on the door and window and the assault occurred after the appellant went outside.
[8] The victim’s account was to the effect that the attack occurred within the appellant’s flat and in circumstances where he had given the prostitute no cause for concern on account of the level of his attentions, nor had he threatened her.
[9] The Judge concluded:

[14] For the purposes of sentencing I make the following findings of fact:

1. The wounding and assault admitted by the accused took place outside the flat at Tennyson Street.

2. The accused was likely to have known (the prostitute) had been threatened by (the victim).

The sentencing

[10] The Judge noted that the victim was wounded to the body beneath the left arm. The injury was a significant laceration which required 17 staples and involved the severance of an artery with substantial bleeding. The attack which immediately followed saw the victim knocked to the ground, and then rendered unconscious by a combination of punches and kicks committed in "something of a frenzy".
[11] The Judge considered that the attack was "relatively unprovoked", since, regardless of the victim’s pursuit of his girlfriend, the appellant’s reaction was "completely over the top, ... vicious and ... prolonged". Later in his sentencing remarks the Judge termed the degree of provocation insignificant and academic.
[12] A major aggravating feature of the offending was that the attack occurred while the appellant was on parole. In 1996 he was sentenced to a total of nine years imprisonment. He was released on parole in late 2002. Eleven days after the present offending the appellant also committed an offence of demanding with menaces. For this offence the appellant was sentenced to a term of 12 months imprisonment cumulative upon his nine year term. This sentence preceded the further six year term.
[13] With reference to the wounding charge the Judge considered that in terms of R v Hereora [1986] 2 NZLR 164 (CA) a starting point of five to six years imprisonment was indicated. Giving such credit as was appropriate for the "ultimate guilty plea" a sentence of five and a half years imprisonment would result.
[14] The Judge then described the assault as a serious matter in itself, which, standing alone, would have warranted a term of 18 months imprisonment. But, after reference to the totality principle, the Judge concluded that six years imprisonment cumulative on the appellant’s current sentence was "an appropriate response". The six year term was made up of five and a half years for the wounding and six months for the assault with intent to injure.

The six year term

[15] Mr Glover criticised the Judge’s reasoning in a number of respects. He argued that in terms of Hereora, five and a half years imprisonment could not be justified. He further submitted that the finding the accused was likely to have known his fiancée had been threatened by the victim was ignored, or at least softened, when the Judge said in the course of his sentencing remarks that any element of provocation was insignificant and academic. Also, with reference to this head of the appeal, Mr Glover characterised the allowance for the guilty pleas as inadequate, if not illusory, in that the Judge identified a starting point range of five to six years imprisonment for the wounding charge, yet imposed a sentence of five and a half years.
[16] Although not a point made in support of the appeal, we doubt that it was appropriate to accumulate separate terms for the wounding and assault charges. This was offending both "of a similar kind" and which involved "a connected series of offences": s 84(2) of the Sentencing Act 2002. This was a single attack, separated only by the victim’s attempt to escape. Normally, a head sentence would be imposed upon the most serious offence and a concurrent term upon the assault with intent to injure.
[17] We also consider it unfortunate that the sentencing Judge did not give a discernible discount for the pleas of guilty. Such pleas were not entered until near the eve of trial, but we note that the assault with intent to injure count was amended (from one of injuring with intent) and that the defended fact hearing produced findings which were broadly favourable to the appellant’s position. In these circumstances there was a need to adopt a clear starting point in relation to the head sentence and fix a realistic and discernible deduction in recognition of the pleas.
[18] But in the final result the question is whether a sentence of six years imprisonment was beyond the available range for offending involving the present features. This was a serious case. The appellant was on parole. He has a bad history of violent offending. A sharp instrument was used to inflict a serious laceration, albeit this was not a piercing stab-like wound. After he was wounded, the victim was subjected to a severe beating which rendered him unconscious. As the Judge said denunciation, deterrence and protection of the public were necessarily the most relevant sentencing principles.
[19] Hereora is no longer to be regarded as the tariff case for this type of offending. In R v Taueki [2005] 3 NZLR 372 this Court recognised three bands for the spectrum of grievous bodily harm offences. Band 1 (starting points of 3-6 years) encompasses violence at the lower end of the GBH spectrum, for example an impulsive street attack where there are no particular aggravating factors. Band 2 is reserved for cases involving greater violence and typically a small number of aggravating factors. These may include the use of weapons, attacking the head and the vulnerability of the victim. The starting points for this band are 5-10 years imprisonment. Band 3 (starting points of 9-14 years) is reserved for cases of very serious violence involving three or more aggravating features.
[20] Although Taueki was decided in June 2005 and therefore after the sentencing in this case, this Court decided in R v Wilson CA334/05 31 July 2006 that the new approach did not represent such a significant change in the sentencing tariff as to require that it be ignored in circumstances such as the present.
[21] In our view this case clearly falls in band 2 of Taueki and justified a starting point towards the middle of the available 5-10 year range. A weapon was used to inflict a serious injury. An artery was severed, occasioning considerable blood loss, but fortunately not permanent consequences. As the Judge observed, the attack was prolonged and frenzied. When the victim was already defenceless, and therefore vulnerable, there were blows struck to his head, as well as his body.
[22] About the only mitigating feature was that there was some element of provocation in terms of the Judge’s finding that the appellant initially believed his fiancée to be under threat. But this was not a greatly significant factor. It fell to be weighed against the aggravating features that the appellant was on parole and has a history of violence. His previous convictions include common assault, possession of offensive weapons and aggravated robbery.
[23] In our view a sentence of six years for the total offending was not beyond the available range. Approaching the case on the basis that a head sentence to reflect both aspects was required, a starting point of seven years imprisonment was well-justified. An allowance of one year for the guilty pleas would have been appropriate in the circumstances of this case.
[24] Accordingly, we are not persuaded that the sentence was clearly excessive.

Was accumulation of the six year term upon the appellant’s existing sentence inappropriate?

Some further context

[25] This ground of appeal necessitates some further context. In September 1996 the appellant was sentenced to six years imprisonment upon a charge of aggravated burglary, and two charges of burglary. The following month he was sentenced to a further cumulative term of three years imprisonment for aggravated robbery.
[26] On 9 December 2002 the appellant was released on parole from his nine year sentence.
[27] On 13 March 2004 the appellant committed the present offences. Then, eleven days later he committed the offence of demanding with menaces. He pleaded guilty to the latter offence and was sentenced in August 2003 to a cumulative term of twelve months imprisonment.
[28] As a result of the March 2004 offending the appellant was remanded in custody. A recall application was filed and in July 2003 a recall order was made.
[29] Finally, in March 2004 Judge Doherty imposed the subject sentence of six years imprisonment, cumulative. In considering the totality principle the Judge said:

You have been recalled to prison and it is slightly debatable, but I will accept the submission of your counsel that your release date is September 2006 and not September 2005, as the July probation report says. That means you have roughly got two years to go on a sentence which will mean you have already spent pretty much nine years consecutively in prison. That is a factor I need to take into account ... .

On this basis the Judge reduced the sentence for the assault with intent to injure charge from 18 to six months imprisonment.

The implications of the various sentencings

[30] We have been considerably assisted by a schedule which Ms Farish obtained in relation to the impact of the two most recent sentences in the context of the appellant’s recall to serve the balance of his 1996 sentences. In circumstances such as these, where a prisoner is subject to several cumulative terms, he is deemed to be serving a "notional single sentence": s 75 of the Parole Act 2002. Here that sentence is 16 years being the nine years imposed in 1996, and the one year and six year sentences imposed in 2003 and 2004 respectively.
[31] In consequence the appellant’s parole eligibility date (assessed with reference to the notional single sentence of 16 years commencing in 1996) is 19 January 2003. This is of course a fiction, in that parole eligibility theoretically preceded the imposition of the most recent two sentences. But more relevantly the appellant’s statutory release date is 17 June 2012 and the expiry date of his sentence is three months later on 17 September 2012. Given the appellant’s record we regard the appellant’s sentence release and expiry dates as of primary relevance.

What if the six year term had not been made cumulative?

[32] The schedule with which we have been provided indicates that if the six year term imposed on 19 March 2004 had not been made cumulative (on the recalled sentence of nine years and the 12 months imposed cumulatively in 2003) then there would not be a deemed notional single sentence of 16 years imprisonment. Rather, the appellant would be subject to a 10 year term arising from the recalled sentence plus 12 months; and a concurrent sentence of six years imprisonment.
[33] In this event his parole eligibility date would be 19 March 2006, being two years (one third) after the imposition of the most recent sentence. Likewise, the appellant’s sentence release, and expiry, dates would be 19 March 2010, as opposed to dates in 2012 as with a single notional sentence.
[34] On account of his recall and the circumstance of separate sentencings in 2003 and 2004 (in relation to the further offending in March 2003), this was a somewhat complicated sentencing exercise. What is clear is that we are in receipt of better information than was available to Judge Doherty, at least as to the implications of the imposition of a further cumulative term.
[35] In relation to an appeal against sentence this Court may vary the sentence imposed if it sees fit to do so: s 385(3) of the Crimes Act 1961. Here, on the basis of the further information, we are satisfied that it is appropriate to intervene and substitute a concurrent six year sentence in lieu of the cumulative six year term imposed in the District Court. This approach produces parole eligibility, release and sentence expiry dates which are more rational than those under a cumulative approach.

Leave to appeal

[36] Mr Griffiths filed an affidavit in support of this question. He deposed that when he was sentenced in March 2004 the filing of an appeal was discussed with his then counsel and a notice of appeal was signed. The appellant asserted that there was then a breakdown in communication, as a result of which the appeal was not brought. Much later, the appellant instructed new counsel.
[37] While this affidavit evidence raises as many questions as it answers, we accept there is some evidence of confusion between client and counsel, and, given the basis upon which we propose to intervene, leave to appeal is granted.
[38] The appeal is allowed in that we direct that the six year term is to be served on a concurrent rather than a cumulative basis.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant initially attacked his victim with a sharp instrument and caused a significant cut to the victim’s side. The victim tried to escape, but he was chased, knocked to the ground and rendered unconscious from several blows, including kicks. Judge Doherty in passing sentence said that the victim "received a severe beating".
[2]	The background to the attack was a relationship which the victim had formed with a prostitute. She was also the appellant’s fiancée. Despite her profession, the relationship between the victim and the young woman was not a sexual one in the usual sense of that phrase. She assisted him in relation to certain fetish behaviour. On the relevant day, 13 March 2003, they were together seeking to procure drugs. There was a disagreement. The young woman fled from the victim’s car to the appellant’s flat. She was pursued. The appellant was made aware of what had just occurred and attacked the victim outside his flat.
[3]	Eventually, the appellant pleaded guilty to offences of wounding with intent to cause grievous bodily harm and assault with intent to injure. The appeal is against a sentence of six years imprisonment, comprised of five and a half years for the wounding and six months cumulative for the assault. Broadly, the case raises two issues:

[5]	Although the appellant belatedly entered pleas of guilty to a charge under s 188(1) of the Crimes Act of wounding with intent to cause grievous bodily harm and to assault with intent to injure under s 194, he did so on the basis that the background facts remained in dispute. There was, therefore, a disputed fact hearing before Judge Doherty.
[6]	Evidence was given by the victim and by the prostitute. They gave differing accounts as to the nature and extent of their relationship. The appellant did not give evidence.
[7]	With reference to the circumstances of the attack the prostitute said that the victim pursued her back to the appellant’s flat and she told the appellant of the disagreement which had just occurred (including that the victim was infatuated with her). The victim then banged on the door and window and the assault occurred after the appellant went outside.
[8]	The victim’s account was to the effect that the attack occurred within the appellant’s flat and in circumstances where he had given the prostitute no cause for concern on account of the level of his attentions, nor had he threatened her.
[9]	The Judge concluded:

[10]	The Judge noted that the victim was wounded to the body beneath the left arm. The injury was a significant laceration which required 17 staples and involved the severance of an artery with substantial bleeding. The attack which immediately followed saw the victim knocked to the ground, and then rendered unconscious by a combination of punches and kicks committed in "something of a frenzy".
[11]	The Judge considered that the attack was "relatively unprovoked", since, regardless of the victim’s pursuit of his girlfriend, the appellant’s reaction was "completely over the top, ... vicious and ... prolonged". Later in his sentencing remarks the Judge termed the degree of provocation insignificant and academic.
[12]	A major aggravating feature of the offending was that the attack occurred while the appellant was on parole. In 1996 he was sentenced to a total of nine years imprisonment. He was released on parole in late 2002. Eleven days after the present offending the appellant also committed an offence of demanding with menaces. For this offence the appellant was sentenced to a term of 12 months imprisonment cumulative upon his nine year term. This sentence preceded the further six year term.
[13]	With reference to the wounding charge the Judge considered that in terms of R v Hereora [1986] 2 NZLR 164 (CA) a starting point of five to six years imprisonment was indicated. Giving such credit as was appropriate for the "ultimate guilty plea" a sentence of five and a half years imprisonment would result.
[14]	The Judge then described the assault as a serious matter in itself, which, standing alone, would have warranted a term of 18 months imprisonment. But, after reference to the totality principle, the Judge concluded that six years imprisonment cumulative on the appellant’s current sentence was "an appropriate response". The six year term was made up of five and a half years for the wounding and six months for the assault with intent to injure.

[15]	Mr Glover criticised the Judge’s reasoning in a number of respects. He argued that in terms of Hereora, five and a half years imprisonment could not be justified. He further submitted that the finding the accused was likely to have known his fiancée had been threatened by the victim was ignored, or at least softened, when the Judge said in the course of his sentencing remarks that any element of provocation was insignificant and academic. Also, with reference to this head of the appeal, Mr Glover characterised the allowance for the guilty pleas as inadequate, if not illusory, in that the Judge identified a starting point range of five to six years imprisonment for the wounding charge, yet imposed a sentence of five and a half years.
[16]	Although not a point made in support of the appeal, we doubt that it was appropriate to accumulate separate terms for the wounding and assault charges. This was offending both "of a similar kind" and which involved "a connected series of offences": s 84(2) of the Sentencing Act 2002. This was a single attack, separated only by the victim’s attempt to escape. Normally, a head sentence would be imposed upon the most serious offence and a concurrent term upon the assault with intent to injure.
[17]	We also consider it unfortunate that the sentencing Judge did not give a discernible discount for the pleas of guilty. Such pleas were not entered until near the eve of trial, but we note that the assault with intent to injure count was amended (from one of injuring with intent) and that the defended fact hearing produced findings which were broadly favourable to the appellant’s position. In these circumstances there was a need to adopt a clear starting point in relation to the head sentence and fix a realistic and discernible deduction in recognition of the pleas.
[18]	But in the final result the question is whether a sentence of six years imprisonment was beyond the available range for offending involving the present features. This was a serious case. The appellant was on parole. He has a bad history of violent offending. A sharp instrument was used to inflict a serious laceration, albeit this was not a piercing stab-like wound. After he was wounded, the victim was subjected to a severe beating which rendered him unconscious. As the Judge said denunciation, deterrence and protection of the public were necessarily the most relevant sentencing principles.
[19]	Hereora is no longer to be regarded as the tariff case for this type of offending. In R v Taueki [2005] 3 NZLR 372 this Court recognised three bands for the spectrum of grievous bodily harm offences. Band 1 (starting points of 3-6 years) encompasses violence at the lower end of the GBH spectrum, for example an impulsive street attack where there are no particular aggravating factors. Band 2 is reserved for cases involving greater violence and typically a small number of aggravating factors. These may include the use of weapons, attacking the head and the vulnerability of the victim. The starting points for this band are 5-10 years imprisonment. Band 3 (starting points of 9-14 years) is reserved for cases of very serious violence involving three or more aggravating features.
[20]	Although Taueki was decided in June 2005 and therefore after the sentencing in this case, this Court decided in R v Wilson CA334/05 31 July 2006 that the new approach did not represent such a significant change in the sentencing tariff as to require that it be ignored in circumstances such as the present.
[21]	In our view this case clearly falls in band 2 of Taueki and justified a starting point towards the middle of the available 5-10 year range. A weapon was used to inflict a serious injury. An artery was severed, occasioning considerable blood loss, but fortunately not permanent consequences. As the Judge observed, the attack was prolonged and frenzied. When the victim was already defenceless, and therefore vulnerable, there were blows struck to his head, as well as his body.
[22]	About the only mitigating feature was that there was some element of provocation in terms of the Judge’s finding that the appellant initially believed his fiancée to be under threat. But this was not a greatly significant factor. It fell to be weighed against the aggravating features that the appellant was on parole and has a history of violence. His previous convictions include common assault, possession of offensive weapons and aggravated robbery.
[23]	In our view a sentence of six years for the total offending was not beyond the available range. Approaching the case on the basis that a head sentence to reflect both aspects was required, a starting point of seven years imprisonment was well-justified. An allowance of one year for the guilty pleas would have been appropriate in the circumstances of this case.
[24]	Accordingly, we are not persuaded that the sentence was clearly excessive.

[25]	This ground of appeal necessitates some further context. In September 1996 the appellant was sentenced to six years imprisonment upon a charge of aggravated burglary, and two charges of burglary. The following month he was sentenced to a further cumulative term of three years imprisonment for aggravated robbery.
[26]	On 9 December 2002 the appellant was released on parole from his nine year sentence.
[27]	On 13 March 2004 the appellant committed the present offences. Then, eleven days later he committed the offence of demanding with menaces. He pleaded guilty to the latter offence and was sentenced in August 2003 to a cumulative term of twelve months imprisonment.
[28]	As a result of the March 2004 offending the appellant was remanded in custody. A recall application was filed and in July 2003 a recall order was made.
[29]	Finally, in March 2004 Judge Doherty imposed the subject sentence of six years imprisonment, cumulative. In considering the totality principle the Judge said:

[32]	The schedule with which we have been provided indicates that if the six year term imposed on 19 March 2004 had not been made cumulative (on the recalled sentence of nine years and the 12 months imposed cumulatively in 2003) then there would not be a deemed notional single sentence of 16 years imprisonment. Rather, the appellant would be subject to a 10 year term arising from the recalled sentence plus 12 months; and a concurrent sentence of six years imprisonment.
[33]	In this event his parole eligibility date would be 19 March 2006, being two years (one third) after the imposition of the most recent sentence. Likewise, the appellant’s sentence release, and expiry, dates would be 19 March 2010, as opposed to dates in 2012 as with a single notional sentence.
[34]	On account of his recall and the circumstance of separate sentencings in 2003 and 2004 (in relation to the further offending in March 2003), this was a somewhat complicated sentencing exercise. What is clear is that we are in receipt of better information than was available to Judge Doherty, at least as to the implications of the imposition of a further cumulative term.
[35]	In relation to an appeal against sentence this Court may vary the sentence imposed if it sees fit to do so: s 385(3) of the Crimes Act 1961. Here, on the basis of the further information, we are satisfied that it is appropriate to intervene and substitute a concurrent six year sentence in lieu of the cumulative six year term imposed in the District Court. This approach produces parole eligibility, release and sentence expiry dates which are more rational than those under a cumulative approach.

[36]	Mr Griffiths filed an affidavit in support of this question. He deposed that when he was sentenced in March 2004 the filing of an appeal was discussed with his then counsel and a notice of appeal was signed. The appellant asserted that there was then a breakdown in communication, as a result of which the appeal was not brought. Much later, the appellant instructed new counsel.
[37]	While this affidavit evidence raises as many questions as it answers, we accept there is some evidence of confusion between client and counsel, and, given the basis upon which we propose to intervene, leave to appeal is granted.
[38]	The appeal is allowed in that we direct that the six year term is to be served on a concurrent rather than a cumulative basis.