The appeal against sentence is allowed.
The sentence of five and a half years imprisonment imposed on the charge of wounding with intent to cause grievous bodily harm is quashed and a sentence of three and a half years imprisonment is substituted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The appellant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. He was sentenced on 19 September 2008 by Judge Treston to a term of imprisonment of five and a half years: DC MAN CRI 2008-092-000343. He appeals against sentence on the basis that the sentence was manifestly excessive.
[2] The appeal requires consideration of the way in which the appellant’s history of Youth Court offending and the victim’s violence towards the appellant impacts on sentence.

Factual background

[3] The incidents giving rise to the offending took place on 8 January 2008. The appellant, then aged 18, was at home along with his father who is the complainant. They were both present, along with other family members, for a wake for a family member. Both had been drinking and were intoxicated.
[4] An argument developed between the appellant and his father over the appellant’s treatment of his girlfriend. The two fought and the complainant hit the appellant on the head with a stereo, leaving the appellant unconscious.
[5] When the appellant regained consciousness he became enraged. He went to his bedroom, which is an external garage on the property. There he obtained a machete and a kitchen knife. The appellant then went out to where his father was standing and stabbed him with the knife in his right shoulder, left armpit and chest. In all, there were four stab wounds.
[6] The complainant lost consciousness through blood loss and was hospitalised. His injuries were described as very serious but he has had a full recovery. The appellant and his father have since reconciled with each apologising to the other.

The sentencing remarks

[7] In sentencing the appellant, Judge Treston treated the use of a weapon and the seriousness of the injuries as aggravating features. The Judge also said there was an element of premeditation because the appellant had gone outside the house to collect the weapons so it was not a “spur of the moment thing”: at [20].
[8] Judge Treston saw the starting point in terms of R v Taueki [2005] 3 NZLR 372 (CA) as six to seven years imprisonment. That figure was uplifted to eight years imprisonment to reflect the appellant’s Youth Court history. That history comprised notings in 2005 (operating a motor vehicle recklessly and possession of an offensive weapon) and in 2006 (kidnapping, dangerous driving of a motor vehicle, and possession of an offensive weapon). The Judge said that even though these were Youth Court matters, they “demonstrate a continuing disregard for the welfare of others and a disturbing trend”: at [22].
[9] The Judge declined to impose a minimum period of imprisonment because there was “some degree” of provocation, to reflect the appellant’s youth, and because of the appellant’s determination to improve himself: at [23].
[10] Credit was given for the appellant’s age, the guilty plea, and for his remorse. A sentence of five and a half years imprisonment was imposed.

The submissions

[11] The appellant submits that the starting point of eight years imprisonment adopted by the Judge was too high. In developing this submission, Mr Lawry argues that the offending, while serious, did not on the authorities warrant an initial starting point any higher than six years imprisonment. He submits that there should then have been a reduction to the starting point to five years to reflect provocation.
[12] The appellant also submits that the Judge was wrong to uplift the starting point by one third to reflect the Youth Court notings (the one third calculation assumes that the starting point was six years rather than seven). Mr Lawry says that the notings were not an aggravating feature but rather reflected the absence of a mitigating factor. Mr Lawry points out that the aggravating factors in s 9(1) of the Sentencing Act 2002 which must be taken into account in sentencing include the offender’s previous “convictions”: s 9(1)(j). Notings in the Youth Court are not convictions, as counsel for the Crown accepts.
[13] Finally, the appellant says that there should then have been a greater credit for the guilty plea (entered after depositions), the appellant’s remorse and to recognise what has been, in effect, a restorative justice process.
[14] On this analysis, the appropriate end sentence would be no more than three years imprisonment.
[15] The Crown accepts that the methodology adopted by the Judge was incorrect, particularly, in the uplift given to the Youth Court history. We come back shortly to what Mr Downs, for the Crown, says about the relevance of the appellant’s Youth Court history. Nonetheless, the Crown submits, the final sentence was within the available range. In that context Mr Downs argues, first, that a starting point of seven to eight years imprisonment was available given the seriousness of the injuries, the use of a knife, and the availability of a second weapon, namely, the machete.
[16] Second, the Crown submits that it was open to the Judge to conclude that the effect of the victim’s conduct was not such as to warrant a lesser starting point. Mr Downs points to the fact a period of time elapsed before the appellant acted and to his voluntary actions in walking outside to the bedroom and picking up the weapons. Finally, the Crown seeks to draw some support from the fact that the injury to the appellant’s head was not emphasised in the pre-sentence report.

Discussion

[17] The seriousness of the injury and the use of a knife puts this offending in band two of Taueki (at [34]) thus warranting a starting point in the range of five to ten years imprisonment. However, in setting the higher starting point of eight years, we consider that the Judge has erred in two respects.
[18] The first aspect is the uplift in the starting point for the Youth Court offending. We accept Mr Downs’ submission that such a history may be a relevant factor in sentencing. Section 9(4) of the Sentencing Act makes it plain that the sentencing court is not limited to a consideration of the aggravating or mitigating factors listed in s 9(1) and 9(2) but that the court may consider other factors as “the court thinks fit”. As Anderson J said in Kohere v Police (1994) 11 CRNZ 442 at 444 (HC):

[While the Youth Court] behavioural history does not amount to prior conviction it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the Court of criminal record.

[19] However, in the present case, the previous history involves no application of violence and is not particularly extensive. The appropriate course in this case was to, as Mr Downs submitted, offset this history against the discount that might otherwise have been given to the appellant for his youth. The history in the present case was not such as to completely negate the effect of his youth but was a relevant factor in that context.
[20] Second, it is plain in our view that the appellant was provoked in a way which was an operative cause of the violence (Taueki at [32]) and that this should have been factored into the equation. The material before us indicates that the events must have all occurred fairly quickly after the appellant regained consciousness. What occurred had also to be considered in light of the other material before the Judge relating to a history of earlier violence by the appellant’s father towards the appellant and evidence of the long term effects of a head injury suffered by the appellant as a child.
[21] In our view, the appropriate starting point taking account of provocation was five and a half years imprisonment. From that, recognising the Youth Court offending history, we consider a discount in the order of 35 per cent is appropriate to reflect the appellant’s remorse, participation in a restorative justice type process (which involved his father’s acknowledgement of responsibility and commitment to supporting his son’s rehabilitation) and the guilty plea. That leaves an end sentence of three and a half years imprisonment. There was no suggestion that a minimum period of imprisonment was appropriate.

Result

[22] The appeal is allowed. The sentence of five and a half years imprisonment is quashed and a sentence of three and a half years is substituted.

Solicitors:
Crown Law Office, Wellington

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