The Queen v Dolman [2009] NZCA 302 (15 July 2009)

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The Queen v Dolman [2009] NZCA 302 (15 July 2009)

Last Updated: 21 July 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/2009

[2009] NZCA 302

THE QUEEN

v

JESSE DOLMAN

Hearing: 8 July 2009

Court: Ellen France, Randerson and Miller JJ

Counsel: P M Keegan for Appellant
K A L Bicknell for Crown

Judgment: 15 July 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] This is an application for an extension of time to appeal against a sentence of 12 years imprisonment imposed on two charges of causing grievous bodily harm with intent to do so.
[2] The charges concern a group confrontation involving two victims, Brendan Hareb and Duncan Transom. Both were wounded in vicious attacks to the head, Mr Hareb being left severely disabled and dependent. The appellant pleaded guilty to the charge involving Mr Transom at the end of the Crown case at trial, and the jury found him guilty on the other charge.
[3] Cooper J adopted a starting point of nine years for the attack on Mr Hareb, reasoning that four of the aggravating factors identified in R v Taueki [2005] 3 NZLR 372 (CA) were present. The starting point took into account an element of provocation and self-defence. (The victims had responded aggressively to the offenders’ wanton destruction of property.) He added two years for the attack on Mr Transom, and a further year for the appellant’s previous convictions. No credit was given for remorse and the guilty plea.
[4] There are two appeal points: credit ought to have been given for the guilty plea; and the starting point for the attack on Mr Hareb was too high, for only two aggravating factors (serious injury and attacking the head) were present.

The application for an extension of time

[5] The appellant was sentenced on 8 October 2007 and did not file his notice of appeal until 12 January 2009, a delay of 15 months. An extension of time is opposed, the Crown contending that the interests of justice favour finality where the merits are weak and there is no sufficient reason for delay.
[6] The delay is addressed in an affidavit of the appellant and the submissions of Mr Keegan, who has acted throughout. Mr Keegan had counselled the appellant to accept his sentence, pointing out that no minimum period was imposed, and the appellant was initially disposed to do so. On reflection, he has decided that the sentence took insufficient account of provocation and self-defence. He instructed counsel to appeal in September 2008, but Mr Keegan delayed until October and then used the wrong form. The rest of the delay is attributable to counsel’s trial commitments and some delays in having the appellant sign the fresh notice of appeal.
[7] A direction was made that the application for leave should be argued first, but when it came before this Court on 14 May 2009, we took the view that the leave application depended on the merits. We granted Mr Keegan an adjournment so he could address them.
[8] The test for granting an extension of time to appeal under s 388(2) of the Crimes Act is found in R v Knight [1998] 1 NZLR 583 (CA), and was discussed in R v Lee [2006] 3 NZLR 42 at [95]-[107] (CA). A balancing exercise is undertaken, including the merits of the proposed appeal, the length of the delay and the reasons for it, the practical utility of the remedy sought, and the impact on others affected and the administration of justice.
[9] In this case, the delay was substantial. That part of it attributable to counsel’s failure to action instructions is excusable, but it is not generally a sufficient reason for delay that the prisoner has decided after long reflection that the sentence was unjust. Accordingly, the question is whether the merits of the proposed appeal outweigh the interests of the public and the victims in finality.

Background

[10] Because the facts are in issue, we begin by summarising the background and recording the Judge’s findings at sentencing. Four young men were involved in the attack on the two victims. They were the appellant, Cheyne Turahui, Lex Willemsen, and Victor Tai. Mr Tai was discharged on a count of injuring Mr Transom with intent to injure and pleaded guilty to a lesser charge. Mr Turahui pleaded guilty to, among other things, causing grievous bodily harm to Mr Hareb with intent to do so and damaging letterboxes, the property of Mr Transom and a Mr Gosney. Mr Willemsen was convicted of causing grievous bodily harm to Mr Transom with intent to do so.
[11] The attack occurred on 23 November 2006, after the offenders had been drinking at a park in Eltham. They walked home at about 9pm. Mr Turahui obtained an axe which associates had taken from a shed on a property, and used it to attack various letterboxes on their route. One of them was that of Ms Morehu, the mother of Mr Transom’s young son. She and Mr Transom came outside to see what was happening. Their neighbour, Mr Hareb, joined them. The Judge recorded what followed:

[9] According to the eyewitness Jason Ngatai there were threats from the victims and the victim Mr Hareb was participating in the exchanges that took place. At this stage too, it appears that Mr Tai, and you Mr Dolman were trying to avoid further confrontation. Two eye-witnesses gave evidence to that effect.

[10] Insults and threats continued to be exchanged as you made your way further along Collingwood Street until arriving at a point in the vicinity of the carpark area at the Fonterra processing plant.

[11] At that point it appears that Mr Dolman and Mr Tai were walking backwards, and Mr Turahui and Mr Willemsen had run off further down the street. There was a confrontation between the victims group and Mr Dolman and Mr Tai. Nothing much happened at that point. It appears that some punches were thrown which may not have landed. Mr Keegan has reminded me that Mr Transom was the first to throw a punch.

[12] The exchange of threats and abuse continued, Mr Hareb at this stage evidently remaining somewhat behind the others in his group, and giving the eyewitness Mr Colin Smith the impression that he did not want to be involved in the confrontation. However, Mr Smith described Ms Morehu as very fired up. Punches were exchanged between Mr Transom and Mr Tai. Mr Tai threw a left/right combination. Mr Dolman also became involved in what Mr Smith described as a little scuffle at this point. No charges were laid in relation to these incidents.

[13] Both groups moved around the corner into West Street. It was there that the very serious assault on Mr Hareb occurred. He had by that stage armed himself with at least one, possibly two wooden battens, pieces of wood that had been used to bear a real estate agent’s sign outside a house near the corner of Collingwood and West Streets. Some evidence suggested also that Mr Transom had similarly armed himself and Ms Morehu may also have been carrying what one witness described as a stick.

[14] An eyewitness, Gregory Katene, described seeing Mr Tai and the others backing around the corner with the victims’ group advancing. He and his friend, Troy Harnett, were together on Mr Harnett’s property on 7 West Street at the time. He described one of the victims’ group as swinging one of the battens. From his description, that person was Mr Hareb. He gave evidence in fact that Mr Hareb had been carrying two battens at this time. Mr Harnett also thought that Mr Hareb might have been carrying two battens. He described him as holding them out in front of him. At this stage Mr Tai, in particular, may have again have been trying to calm things down. Both the witness Katene and the witness Harnett gave evidence of him saying “put down the weapon”.

[15] Another eyewitness, Ms Ngaau, said that Mr Hareb had attempted to strike at Mr Dolman with a piece of wood. Mr Dolman admitted that he attacked Mr Hareb, knocking him out and that as he lay on the ground he kicked him three times around the shoulder area. Mr Harnett, however, described him as having seen him stomp him once on the head as well as kicking him in the upper body. Both the kicking and the stomping were administered with considerable force. Mr Katene gave evidence that Mr Dolman had kicked Mr Hareb once in the head and stomped him once in the head. The kicking and the stomping had been in his words, “reasonably hard”.

[16] Mr Tai pleaded guilty at the trial to a charge of common assault of Mr Transom at this stage. As I have already explained, he has already been sentenced.

[17] Mr Katene then described somebody, who must have been you, Mr Turahui as having picked up the weapons Mr Hareb had brought to the scene and as hitting him with one of the battens, about three times, as he lay on the ground immobile and probably unconscious. By that stage Mr Transom, and the other men had left and made their way back into Collingwood Street. Mr Katene said that he saw the attacker swinging the batten over his head and then dropping it down onto Mr Hareb with a lot of force. Mr Katene stepped in and told Mr Turahui to leave, whereupon Mr Turahui ran away.

[18] Mr Smith then described seeing Mr Transom come sprinting back around the corner. He saw Mr Willemsen cut him off so as to prevent him from running further. Mr Tai was also there at that stage, Mr Smith thought he was trying to calm the situation down again. He placed himself between Mr Willemsen and Mr Transom. Then, Mr Dolman walked up behind Mr Transom, and struck him with what Mr Smith described as a “straight right to the right-hand side of the jaw”. Mr Transom didn’t see it coming. He was knocked out instantly and fell to the ground. Once he was on the ground, Mr Dolman kicked him hard in the head. Mr Smith described the force used as being like that of a full kick to a rugby ball.

[12] Mr Hareb suffered dreadful injuries which are powerfully recorded in a victim impact statement from his wife. His skull was seriously fractured and he suffered extensive bleeding within the brain. He lost an eye, and has suffered severe impairment of his brain function. He cannot walk unaided or talk, and requires 24-hour care. He has no short-term memory. His wife has had to give up her employment to care for him, and the family is under severe financial stress.
[13] Mr Transom was also seriously hurt, although he has substantially recovered. He suffered a broken jaw and was badly bruised on his back and upper body. He was hospitalised for a week and metal plates were inserted into his head. He suffers ongoing numbness and cannot bite properly. Like Mr Hareb, he did not give evidence at the trial; he has no memory of what happened.
[14] The Crown submitted that six of the Taueki aggravating factors were present; extreme violence, serious injury, use of weapons, attacking the head, multiple attackers, and victim vulnerability. The Judge carefully assessed the culpability of each offender. He found, speaking of the appellant:

[46] ...The actual violence that you directed to Mr Hareb was a very forceful blow with your fist to his head, and then there was a kick and a stomp. I cannot conclude, on the evidence that you were responsible for anything else. In the present case, I do not consider that R v Kara means that I must sentence you as if you were responsible for Mr Turahui’s subsequent use of the batten. The Crown did not present its case on the basis that you were a party to Mr Turahui’s assault. By the time it occurred, on the evidence, you were on your way back around the corner. In the circumstances I doubt that your conduct can properly be said to have involved two of the Taueki aggravating features on which the Crown relied, namely extreme violence or the use of weapons. Nevertheless, your offending was serious, involving as it did, blows with the hands and the feet to Mr Hareb’s head, and you would have contributed to the serious injuries that Mr Hareb suffered, although the extent to which that was the case cannot be ascertained from the evidence.

[15] The Judge accepted that the appellant, who was aged 21 at sentencing, had shown remorse and real concern for his actions and their impact on the victims. The probation officer recorded that he made no attempt to minimise his actions. There were references indicating that, although an average student and easily manipulated, he excelled in sports at school. He is a founding member of a group called Coastal Youth Core Incorporated, set up to benefit youth in the Opunake area.
[16] However, the appellant has a number of previous convictions, beginning in 2004. He was convicted of injury with intent to injure (two charges) and assault following two incidents on 17 April and 7 May 2005, and sentenced to seven months imprisonment. He also has a conviction for threatening to kill, and another for resisting police, along with two for offences of dishonesty and one for cultivating cannabis.

Credit for guilty plea

[17] The Judge gave reasons for refusing any reduction for the guilty plea and remorse:

[50] Insofar as mitigating circumstances, the only real issue that Mr Keegan has raised in that respect has been the fact that you pleaded guilty at the trial to the assault on Mr [Transom]. You have shown remorse, and there are indications in some of the letters that Mr Keegan has made available to me, that you are regarded by some as being a person of good character.

[51] Insofar as the guilty plea is concerned, I simply note that that occurred on the fifth day of the trial, at the conclusion of the Crown case, when all the evidence against you had been called and when your conviction was in my view inevitable.

[52] I have not found anything in your personal circumstances, to the extent that they have been mentioned by Mr Keegan which would justify any reduction in the sentence to be imposed. In the result, the sentence that I will impose on you will be one of 12 years’ imprisonment.

[18] Mr Keegan contended that the Judge erred in principle by refusing credit for the guilty plea, since it entailed acceptance of responsibility for that charge and spared the jury the task of considering it. When coupled with remorse generally, an allowance of 5 per cent of the overall sentence ought to have been made. The figure of 5 per cent was selected because, in counsel’s submission, the appropriate discount had the appellant pleaded guilty to both charges at the end of the Crown case would have been 10 per cent. There should always be some benefit for an accused who pleads guilty, however late; if that were not so, there would be no incentive to plead guilty once the trial had begun.
[19] Counsel referred to the United Kingdom Sentencing Guidelines Council’s Definitive Guideline – Reduction in Sentence for a Guilty Plea (2007). The Guideline contemplates a sliding scale of deductions for a guilty plea, ranging from one third where the plea was entered at the first reasonable opportunity to one tenth for a guilty plea entered at the door of the Court or after the trial has begun.
[20] The rationale for such a discount is said to be:

2.2 A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.

We observe that the rationale differs somewhat in New Zealand, where a guilty plea is a mitigating factor and not merely an aspect of the effective administration of justice: s 9(2)(b) Sentencing Act 2002. It is customary to treat a guilty plea as tangible acceptance of responsibility.

[21] The Sentencing Guideline provides that a Court may depart from the Guideline. The Guideline recognises that it may not be appropriate to give the full reduction where the prosecution case is overwhelming or a late plea was entered for tactical reasons. In this case, for example, the Judge might have taken the view that the late plea to the lesser offence was designed to persuade the jury that the appellant’s defence to the major offence was plausible.
[22] In New Zealand, there is as yet no guideline judgment, but this Court has regularly approved discounts of between 10 per cent and 33 per cent: R v Fonotia [2007] 3 NZLR 338 at [50] (CA). It is not the case that credit must always be given for a guilty plea, no matter how late the plea, how strong the Crown case, or how incomplete the acceptance of responsibility for the totality of the offending. On the contrary, the credit to be given may be reduced where the Crown case is strong, and credit may be withheld until all the offending has been acknowledged; see for example R v Mako [2000] 2 NZLR 170 at [18] (CA).
[23] We do not think the Judge erred by refusing a discount in the circumstances of this case. He considered conviction inevitable, and by that stage of the case the appellant must have known it. There was no saving in trial time, no witness was relieved of the burden of giving evidence, and the Judge was not required to assign credit calculated as a percentage of that available for full acceptance of responsibility.
[24] Nor do we accept that the Judge erred by finding that the appellant’s remorse justified no reduction, or that the sentence is manifestly excessive as a result. The Sentencing Act lists remorse as a mitigating factor (s 9(2)(f)), but the weight to be attached to it varies with the circumstances of the case and depends in part on the Judge’s view of the offender’s character and history. We see no reason to depart from Cooper J’s assessment.

The starting point

[25] After setting out the facts and his findings about the appellant’s role ([11] and [14] above), the Judge dealt with provocation or excessive self-defence. He accepted Mr Keegan’s submission that there was a very strong reaction by what he called the victims group to the letterbox smashing. Threatening language was used. He accepted that the appellant would have found it necessary to disarm Mr Hareb, and possibly Mr Transom, on seeing them wielding the wooden battens. That might have justified the initial assault on Mr Hareb. But the kicking and stomping was done when the appellant had effectively rendered Mr Hareb helpless, and was very wrong. Nor was there any justification for the later attack on Mr Transom.
[26] The Judge then constructed the sentence:

[49] Having taken all of these considerations into account, I consider that your offending against Mr Hareb justifies a starting point for sentencing purposes of nine years. That includes an allowance for provocation and excessive self-defence in respect of the initial stage of your attack on him. I would, however, increase that starting point to reflect your overall offending, that is, to take account of the attack on Mr Transom, and on that basis I would arrive at a figure of eleven years. That approach, it seems to me, is what is required by s 85(2) of the Sentencing Act, which provides that if cumulative sentences of imprisonment are imposed, they must not result whether individually or in a combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In my view, there would be a risk if I adopted the Crown’s approach of non-compliance with that section. On this basis, I would arrive at a figure of eleven years’ imprisonment. To that I would add a further year to reflect the aggravating circumstance of your previous offending. The result would be a final sentence of 12 years in prison.

[27] As already noted, the Crown had argued that six of the Taueki aggravating factors were present but the Judge doubted that the appellant’s conduct could properly be said to have involved extreme violence or the use of weapons. Mr Keegan argued that the Judge must have accepted that there were multiple attackers and that the victim was vulnerable, when neither was true.
[28] Developing these submissions, counsel first contended that there was a delay between the appellant’s attack on Mr Hareb and Mr Turahui attacking him with the battens. He pointed to the evidence of a witness, Gregory Katene, who said there was a gap of perhaps ten or twenty seconds between the appellant leaving Mr Hareb and going around the corner into Collingwood Street, where Mr Transom was, and Mr Turahui attacking Mr Hareb. As to the second point, he contended that Mr Hareb was not vulnerable when the attack began; on the contrary, he was armed with a batten or battens, and the entire assault happened very quickly. He argued that vulnerability as used in Taueki is addressed exclusively to pre-existing qualities of the victim, such as age or disability.
[29] When considering whether there were multiple attackers, the incident must be examined as a whole. Counsel’s submission is possible only because of the thorough way in which the Judge constructed the sentence. He set the starting point by reference to the attack on Mr Hareb alone, adding a further period, adjusted for totality, to reflect the attack on Mr Transom. He might well have set a starting point that included the attack on Mr Transom, recognising that this was a group attack on both victims rather than two separate incidents. Further, the appellant was very much at the centre of the attack; he first disabled Mr Hareb, ceasing that attack only when another person said he had had enough, and then ran around the corner to immediately disable Mr Transom, punching him from behind and kicking him in the head when he was on the ground. Mr Turahui, who followed him by attacking Mr Hareb, was aged 15, and Mr Willemsen was also actively involved. It is correctly characterised as a case of multiple attackers.
[30] We do not accept that vulnerability should be confined to pre-existing characteristics of the victim. The sentencing bands and aggravating factors were intended as guidance to sentencing Judges (Taueki at [10]), and vulnerability is a question of fact. That is the effect of this Court’s judgment in R v McGregor [2007] NZCA 435 at [11]- [14]. Of course it is not enough to enumerate the applicable aggravating factors; they must also be evaluated. So the Judge may recognise, for example, that the incident happened very quickly and the victim was not vulnerable when it began, reducing the weight to be attached to this consideration in the circumstances. In this case, the Judge was right to find that Mr Hareb was vulnerable when he was lying defenceless on the ground.
[31] We are satisfied that it was open to the Judge to set the starting point at the bottom of Taueki band three (9-14 years), reflecting the number and gravity of the aggravating factors relevant to Mr Hareb, particularly the extremely serious harm done. As the Judge found, the element of provocation and self-defence was spent after the first blow. Mr Keegan did not take issue with the two-year uplift for the attack on Mr Transom (or the additional year for the previous convictions). The Judge might equally have treated the serious attack on Mr Transom as an aggravating feature of the lead offence, arriving at a starting point of 11 years.
[32] We are satisfied that this ground of appeal is not seriously arguable.

Decision

[33] We find that the appeal has no merit, and in those circumstances the application for an extension of time to appeal is declined.

Solicitors:
Crown Law Office, Wellington