The Queen v Christie [2008] NZCA 211 (8 July 2008)

Last Updated: 21 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/08 [2008] NZCA 211THE QUEEN

v

ROBERT JAMES CHRISTIE

Hearing: 26 June 2008

Court: Baragwanath, Rodney Hansen and Harrison JJ

Counsel: L B Cordwell for Appellant
N P Chisnall for Crown

Judgment: 8 July 2008 at 11 am

Reissued: 9 July 2008: See Minute of 9 July 2008

Effective date of Judgment: 8 July 2008

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1] This appeal is against a sentence of ten years’ imprisonment with a minimum non-parole period of six years imposed by Judge Phillips for the appellant’s offending against his former partner on two days, a month apart. The Crown does not oppose leave for the appeal which is out of time but contends that the appeal lacks merit and should be dismissed on that basis.

The counts and the pleas

[2] The appellant was charged with committing offences on 27 February 2007 of:

• Assaulting a female;
• Wounding her with reckless disregard; and
• Threatening to cause her grievous bodily harm.

[3] On 25 May 2007 he was further charged that while on bail he committed further offences:

• Unlawful detention of the victim;
• Assaulting her; and
• Two counts of rape.

[4] There was a further charge of escaping from lawful custody on 30 March 2007.
[5] The appellant pleaded guilty to all charges.

The appellant’s contention

[6] The appellant does not challenge the starting point of 11 and a half years’ imprisonment adopted by the sentencing Judge but contends that the end sentence is manifestly excessive because of inadequate discount for his guilty pleas and failure to acknowledge an expression of remorse recorded in the pre-sentence report.

The facts

[7] The appellant is 26 years of age. His list of previous convictions includes cultivation of cannabis as well as burglary, and possession of an offensive weapon.
[8] The first offending, on 27 February 2007, occurred when the appellant arrived unannounced at the victim’s home. The victim was his former partner and they had a 15 month old son. For a time the appellant played with the child, then while he was holding still the child, he punched the victim in the back of the head with a closed fist and cut her with a knife. He told her that he felt like setting her on fire and demanded her cigarette lighter. He tried to remove the lid of a plastic petrol can but was unsuccessful. He then handed the child back to the victim and apologised for his behaviour. She asked him to leave but he refused to do so until the police arrived.
[9] The second offending must be recounted at length. On 24 March 2007 the victim brought their child to the appellant’s home and left him there. She went to her new partner’s address and spent the night with him. The following morning she saw a number of calls and text messages from the appellant on her cell phone. He wanted her to contact him. Soon afterwards he rang her and said that he had the child and he was going to commit suicide. The victim became very concerned for the child’s safety and agreed to meet the appellant at a car park. Her partner took her there and she met the appellant across the road from the carpark. He had the child with him, in a car seat in the front passenger seat. The appellant told the victim that he wanted her to get into his car so they could go and have a talk. When she refused he drove off with the child. The victim crossed back to the carpark and the appellant drove in after her. He again asked her to go with him to a park to have a talk. She refused. The appellant threatened to take off with the child. The victim then got into the back seat of the appellant’s car, asking her partner to follow them.
[10] There followed a seven and a half-hour period of gross indignities and violence, during which period the child was in a baby seat beside the appellant. He began an episode of erratic driving, which defeated the attempted pursuit by the victim’s partner. When the appellant stopped at one point, the victim tried to get out but found that the child locks and electric window locks were engaged. The appellant told her that she was stupid to trust him and that he was going to kill her. He carried on driving. At the same time he verbally abused her, turned around and lashed out at her with his fists, striking her on her arms, head, legs and body. He demanded her cell phone and hit her with it in the area of her throat. He told her that she was going to die and he was going to bury her.
[11] The appellant drove to a cemetery where he stopped to read text messages on the victim’s phone. He then drove on to a driveway with a gate across it and pulled out a belt containing shotgun shells and showed her one of them. He asked the victim what she thought he was going to do with it and she said “kill me”. He said “that’s right”. He told her to get out of the car, climb over the gate and start walking.
[12] At that point a car approached and the appellant closed the victim’s door, got back into the vehicle and drove off. He threw the phone at her hitting her on the left cheek. He stopped, turned around in the seat and punched her a number of times to the head with both fists. As he drove on he referred to the contents of the text messages and punched her some 15 to 20 times to the areas of her head and leg.
[13] He drove to an open area where he parked and continued to look through her cell phone and hit her on the head with his fist. At one point he made her speak to her partner on the phone while holding it for her. He then hung up and continued lashing out and hitting the victim.
[14] After a period of 30 to 40 minutes the appellant got out of the vehicle, and when the victim refused to do so, he grabbed her by the arm and dragged her out of the back seat. He referred to her relationship with her partner and grabbed her around the throat with his right hand, shaking her, forcing her on to the ground pulling her back to her feet by her hair. He forced her back into the back seat and climbed on top of her. He asked sexually explicit questions about her relationship with her partner and head butted her when she refused to answer. He then pulled the victim out of the car again, and told her to remove her clothes. When she refused he pushed her onto the seat and did it himself. When she was naked, he grabbed her by the hair and threatened her with a piece of wood. He opened the car boot and told her to get in. She begged him not to.
[15] He closed the boot and told her to get on to her hands and knees, which she did. She felt something like a sock being pulled round her neck, pulling her head back and causing her difficulty breathing. He told her to open her legs and he tried to lie on his back between them. He then grabbed her around the stomach and threw her in the back seat of the car and raped her six or seven times. He told her to lie down. He tied her wrists behind her and also her feet with socks or stockings.
[16] The appellant then sat her in the car, grabbed her by the hair and threw her on the ground. He kicked her in the stomach as if he were kicking a rugby ball. He then took his cell phone and photographed her genitals and breasts.
[17] He then said he was sorry and untied her. He gave her back her clothes which she put on. He spoke about her relationship with her partner and said that he would have to get rid of her now. He hit her some ten times with both fists, then grabbed her by the throat and she had difficulty breathing.
[18] The appellant’s cell phone rang and he became agitated. He said that he had to get rid of her now and that he loved her. He told her to get out and took her to the car boot. He told her to look in the boot and said that there was no gun there. He then told her to get back into the back seat, which she did. He told her he was going to take her home and that she could have their son.
[19] His cell phone rang again. He stopped the vehicle and told the victim that he couldn’t take her back as she had a mark on her head and said he had raped her. She begged him to take her back. He said he might as well make the most of it and grabbed her by the legs and again removed her lower clothing and again raped her, telling her that this was for her boyfriend. He told her to put her clothes on and told her he would take her home and got back in the car.
[20] While driving he became agitated and told her he felt like killing her. He turned around in the seat and began hitting her. He drove again to the cemetery where they visited a friend’s grave. He appeared to be reading text messages on her phone. He spoke of using a nearby puddle to drown her. Members of the public then arrived and he told her to get into the car and closed the door.
[21] The appellant finally left the victim at her brother’s home at about 7.30pm.
[22] When interviewed by the Police the appellant initially made no comment. Later he said he had had sex with the victim but that she had wanted it. He said they had gone to an area which he could not describe where he had sex with her on the grass, and that afterwards he got angry and hit her with his head.
[23] The victim suffered a bump and cut to her forehead, a graze to her left temple, numerous grazes, cuts and abrasions to her body, arms, legs and neck area. In her victim impact statement, she refers to feeling dirty, ashamed, degraded. She says that she still has nightmares and describes how the assault has changed the way she relates to people.

Submissions

[24] In his candid and effective submissions Mr Cordwell focused on the importance in mitigation of the pleas of guilty as demonstrating the offender’s acceptance of responsibility, indicating remorse and contrition, sparing the victim the stress of waiting for the trial and the ordeal of giving evidence, reducing the pressure on Crown resources and avoiding inconvenience to other witnesses. The discount in this case of one and a half years or 13 per cent was, he argued, inadequate. He also submitted that the pre-sentence report indicated that the appellant is remorseful and contrite and that this mitigating factor was not taken into account by the Judge.
[25] He further submitted that the minimum term of imprisonment was excessive. He cited R v K [2005] BCL 142 (HC) where Laurenson J imposed an 11-year term for a minimum period of imprisonment of five and a half years. The offender in that case had 46 previous convictions whereas the appellant’s previous offending in this case, which includes burglary and the cultivation of cannabis, includes only two common assault convictions, one of them clearly minor.
[26] It may be observed that the previous convictions in K were mainly for dishonesty, driving offences, and two offences involving violence. There was a single episode of offending in which the victim was abducted by a stranger on her way home and was sexually violated and raped. There does not seem to have been the same degree of violence, and extended brutality as in this case. The presence of the child in this case gives it a distinctive character.
[27] For the Crown, Mr Chisnall submitted that the starting point could well have been in excess of 11 and a half years. The offending has had a significant and continuing impact upon the victim. He submitted that the offending on 27 February justified a cumulative sentence and that the starting point, the deduction and the minimum sentence were all justifiable.

Discussion

[28] We accept the Crown’s submissions that the gravity of the offending is between that considered by this Court in R v Teepa CA 79/04 27 July 2004, where a starting point of ten years’ imprisonment was endorsed by this Court following a plea of guilty, and that of the gross conduct in R v Singh CA 348/05 26 April 2006 where this Court upheld a starting point of 17 years’ imprisonment. Here the principal aggravating features were:

• (a) The serious and continuing violence and threats of violence which the Judge concluded were motivated by a desire to dehumanise and degrade the victim;
• (b) The length of time during which she was detained;
• (c) The presence on 27 February and 25 March throughout the offending of the parties’ 15 month child, warranting the Crown’s description of it as a special and perverse type of premeditation;
• (d) The use on 27 February of a knife to wound the victim while she was holding the child ([8] above);
• (e) The serious and continuing impact of the appellant’s conduct on the victim set against a backdrop of domestic abuse.

[29] As this Court observed in R v Seller [2007] NZCA 422 at [4](e), referring to R v Billam [1986] 1 All ER 985 at 988b, the element of detention entails a need to impose a sterner than usual sentence when the impact on the victim has been of “special seriousness”.
[30] The probation report recorded that the appellant expressed a degree of remorse. It noted that prior to his remand in custody the appellant appeared to have a significant cannabis abuse problem which the probation officer regarded a key factor contributing to his offending. He assessed the appellant as at high risk of further offending.
[31] We accept Mr Cordwell’s submission that the expression of remorse should have been expressly recognised by the Judge. It is also the case that the allowance for the pleas of guilty was conservative. But each needs to be viewed within the wider context of the offending and the fact that the pleas came virtually on the eve of the trial after the victim had been required to give evidence during the preliminary hearing. There was also an application to vacate the guilty pleas, which required sentencing to be adjourned and accentuated the victim’s stress resulting from the uncertainty.
[32] Having regard to the totality of the offending on three occasions we have concluded that the eleven and a half year starting point could well have been set at 13 or 14 years. The offending has a sustained and sinister character which may warrant regard to psychiatric and psychological considerations when questions for parole come for consideration. The 10-year term was well justifiable even after the greater allowance for mitigation for which Mr Cordwell contended.
[33] In these circumstances the threshold for imposing a minimum period of imprisonment described in R v Taueki [2005] 3 NZLR 372 at [52] – that the one-third minimum period is insufficient for the purpose of accountability (punishment), denunciation and deterrence, or to protect the community from the offender – is crossed.
[34] Here the twin purposes of deterrence and community protection for an offender presenting high risk of reoffending and little self-awareness regarding the seriousness of his actions plainly warrant the six-year minimum term imposed.

Decision

[35] An extension of time for appealing is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington