The Queen v Shirley [2009] NZCA 509 (23 October 2009)

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The Queen v Shirley [2009] NZCA 509 (23 October 2009)

Last Updated: 27 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA57/2009

[2009] NZCA 509

THE QUEEN

v

MONCELLO DAVID SHIRLEY

Hearing: 6 October 2009

Court: William Young P, Panckhurst and MacKenzie JJ

Counsel: R G Glover for Appellant
B Hawes for Crown

Judgment: 23 October 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] On 28 January 2009 the appellant was sentenced to a total of six years imprisonment in relation to two unrelated sets of offending. He now appeals against sentence.

The offending

[2] The first offending involved an aggravated burglary which occurred on 8 April 2007. The night before (ie on 7 April) there had been a party at the home of the appellant’s brother, Kyle. Also present was another brother, Nathan. During the night there was an incident between Nathan and Kyle’s father-in-law which resulted in Nathan leaving the premises.
[3] At approximately 1.30 am in the morning Nathan and the appellant returned to Kyle’s address. Nathan had a large knife and the appellant was carrying a wooden chair leg. Nathan knocked on the door. Kyle’s partner opened the door and told Nathan and the appellant to leave. They both, however, entered the house. The father-in-law came out to see what was happening but quickly retreated to his bedroom and barricaded the door. The appellant followed him and used the wooden chair leg to bang on the bedroom door. When it became apparent that the Police had been summoned, the appellant and Nathan left the address.
[4] The appellant was found guilty of aggravated burglary in relation to these events.
[5] While on bail in relation to this offence, the appellant re-offended.
[6] He had been at a party in company with the victim (who was a friend of longstanding). The victim left the party and was followed by the appellant who attempted to get him to return. The victim was unwilling to return and in the course of what followed, he grabbed the appellant and held him against a wire security wall. He realised that the appellant was carrying a knife (incidentally one which the victim had previously sold to the appellant). The victim in effect challenged the appellant to use the knife but the appellant, initially, did not attempt to do so. When the victim let him go and went to walk away the appellant stabbed him in the chest. Although the victim’s injuries were serious he has made a full recovery.
[7] At the commencement of his trial in relation to this offending, the appellant pleaded guilty to a count of unlawful possession of an offensive weapon. The jury found him guilty of wounding with intent to cause grievous bodily harm.

The appellant

[8] The appellant was 19 years old when he appeared for sentence. He is slightly built.
[9] His childhood was characterised by disharmony between his parents, physical trauma, and apparently some sexual abuse. He is of limited intellectual ability and his schooling was troubled. He has a number of border-line personality traits and difficulties with alcohol and cannabis. He has appeared on a number of occasions in the Youth Court for offending of a disturbingly similar kind to the offending for which he was sentenced, for instance possessing a knife in a public place, burglary and crimes of violence.
[10] The appellant has not fared well in prison since sentencing. The material before us suggests that he has been raped, assaulted, threatened and generally “stood over” in prison. He has lost a good deal of weight. On one occasion he woke up to find that his cell mate had hanged himself but he managed to cut him down and save his life. He is currently, for his safety, in a unit with other vulnerable inmates.

The approach of the sentencing Judge

[11] In his sentencing remarks, Judge Doherty discussed the facts associated with the wounding charge in the following way:

[5] The Crown’s case was that you thought he needed to be taught a lesson and you made some observations to one of the other people at the party, a Mr Mason, who also left with you.

[6] In any event, you caught up with Johnny and kept asking him to come back to the party. He did not want to go and he made that clear to you. You had that verbal exchange but there was also a physical exchange where he got you up against a security fence of a house that was being built in the vicinity where you were. You claimed that you were in fear of him and that he threatened you by threatening to kill you and that he was attacking you and somehow the knife or a knife that was in your possession went into him.

[7] The Crown case was not that at all; that there was this altercation but on his evidence he went to leave and then you called him back and stabbed him with a knife.

[8] The jury took only 35 minutes to come to its decision. Your defence was that you were acting in defence of yourself. I think in the circumstances of the timing of the jury verdict, it is very likely that they rejected your defence and that they thought you were acting as the aggressor. From what I saw and heard of the evidence, that is a reasonable approach for them to have taken.

[12] The Judge was plainly concerned about the appellant and his background, and the pre-sentence reports which were before him were reasonably full and referred to information provided by Psychological Services. He commented on this material in the following way:

[16] I have also had a supplementary report from the Probation Service which looked at the question of your state of mind and your psychological and perhaps psychiatric position. The Probation Service through its Psychological Services has found difficulty getting you to come to the barrier about treatment. They describe you like this – that you display a complex mix of emerging borderline personality traits, although given your age it is considered too soon to make a formal diagnosis. It seems that you have suffered head trauma and the psychological and physical abuse that I have referred to earlier. They think there is a very clear need for psychological intervention but you are described as being wilfully non-compliant with community-based sentences and although you would best benefit from psychological intervention, their recommendation is that that would be best achieved within a custodial environment. All that means is that you are hard to engage with and it may well be that Ms Sewell is correct that it is because of the way you have been treated in the past.

[13] The critical passage in the sentencing remarks in these terms:

[20] I am going to take the stabbing matter as the main lead and most serious offence, which it is. The Court of Appeal in a case called R v Taueki [2005] 3 NZLR 372 (CA) has given guidance to other Courts about how to treat serious violent offending and, make no mistake, that is what this is. You are very lucky that you are not here facing something even more serious than wounding with intent to do grievous bodily harm.

[21] In the Taueki case the Court of Appeal set out these guidelines which refer to a number of aggravating features and you have some of the serious ones. There was some premeditation. I think it is clear on the verdict of the jury and the time they took that they took the view, as I would have, that you intended to stab this man and you did. I do not think that you necessarily thought about it for hours or whatever but certainly you must have taken out that knife, opened up the blade (because it was a folding one), called him back and then plunged it into this chest. That is not spontaneous. That means you did some planning. You used the knife. You caused him serious injury. Those are factors which place this offending in what is known as either the top of band one or the bottom of band two in Taueki. Band one is three to six years, band two is five to ten years and I have to assess where in that range I should start. As best I can, I have come to six years imprisonment.

[22] From that point, I have to either add or subtract for personal matters – either aggravating features or mitigating. The aggravating ones are your propensity for violence. You might be a young man but you are not an inexperienced young man when it comes to violent offending and also being in a position to get yourself close to violent offending – hence three convictions now, including the Youth Court matters, for carrying offensive weapons, namely knives. Also, you were on bail for this very serious second crime – serious violence in itself. You were on bail for the aggravated burglary when you committed this offence.

[23] In mitigation there is your youth. You were 17 years of age at the time but in my view you were an “old” 17 when it came to violence matters. I have to take into account the difficulties occasioned by your difficult upbringing. That is a mitigating factor although I do not elevate it as high as Ms Sewell would have me. Those difficulties might mean you behave in certain ways but they cannot necessarily be blamed for your behaviour. There are also the restrictions while on bail. You were under significant restrictions for some 18 months and that must be taken into account.

[24] What do I add or subtract for the aggravating personal features and the mitigating personal features? I think they probably cancel each other out. I might well have been prepared to add another year because of your violent propensities the fact that you were on bail for the second crime.

[25] As to the aggravated burglary, I sentenced your brother to three years imprisonment. I started there by intending to impose three and a half years and I gave him a credit for attending the Restorative Justice Conference and his willingness to make good of six months. He was also facing charges, which were a little less serious, of assault with a weapon and threatening to kill. I think from that three and a half years I would be prepared to give you a credit for your age and your restorative justice outcome and the regret that you have expressed of 12 months which would put that in the two and a half year category.

[26] The Sentencing Act tells me that I have to impose a sentence which is the least restrictive that I can and in terms of this exercise and in view of the seriousness of your violence, that really means as fewer years as I think is appropriate. You may be young but I have the view that you are, for whatever reason, totally amoral when it comes to matters of violence and I am not really sure why, but whatever sentence I impose must make you accountable, deter you hopefully and others who want to run around being violent the way you have been and to denounce that conduct. I am afraid the rehabilitation that you need would have to be rehabilitation within the prison system.

[27] I also have to determine whether in the context of the least possible sentence whether I aggregate or add the six years and the two and a half together. We have two totally discrete sets of violent offending some months apart and the usual principle is that those should be added together. That would give a sentence of eight and a half years in prison. I also have to take into account totality and that means, would that be right for a person of your age and in your situation? I have come to the view that I should not add the two and a half on. I am going to take that into the mix of things and whilst your culpability might show eight and a half years, I think that justice would be done and giving you the best that I can in the conscience that I have to sentence for the community, a sentence of six years imprisonment should be the total. I have taken into account in that totality principle also, the fact that I have not given any uplift for your violent propensities and that that effectively gives you a credit also for your youth and your background.

[28] You are sentenced on the wounding with intent to do grievous bodily harm to six years imprisonment.

[29] On the aggravated burglary, to two and a half years imprisonment.

[30] On the possession of the knife (that is an incidental matter), three months imprisonment.

[31] The terms will be concurrent. You will therefore serve a maximum sentence of six years in prison.

[14] The overall impression we have from the sentencing remarks was that the Judge was doing his best to be merciful while also recognising the seriousness of the offending and the public safety considerations which were necessarily engaged. The appellant can count himself as fortunate that the Judge did not accumulate the sentences of two and a half years for the aggravated burglary and the six years for the wounding. It would also have been open to the Judge to have fixed a minimum period of imprisonment.

The challenge to the sentence

[15] In his submissions on behalf of the appellant, Mr Glover was able to challenge particular aspects of the Judge’s sentencing remarks, including his approach to the self-defence issue and the provocation allegedly offered by the victim, his treatment of the offending which was dealt with in the Youth Court (which did not technically result in “convictions”), and his conclusion that the aggravating factors and mitigating factors cancelled each other out. He also relied heavily on the post-sentence reports relating to the appellant and the way in which he has been treated in prison.
[16] It is possible to quibble with what the Judge said in [8] of his sentencing remarks, in particular as to whether what the Judge said should be regarded as a finding of fact. When, however, it is read with [21], the critical findings of fact become perfectly clear. Self-defence as a justification was excluded by the jury’s verdict as was any form of self-defence in terms of what the Judge said at [21].
[17] The sort of provocation allegedly offered by the victim (refusing to go back to the party, the holding of the appellant up against the fence and the challenge to use the knife at that stage) falls short of what was envisaged in R v Taueki [2005] 3 NZLR 372 at [32] (CA) as providing substantial mitigation, particularly given that appellant would appear to have been the aggressor.
[18] The reference to the offending in the Youth Court as having resulted in convictions is, we think, just a slip of the tongue. The underlying offending was undoubtedly relevant. In this context, we see the Judge’s conclusion as to the balancing out of aggravating and mitigating factors as being, if anything, generous to the appellant.
[19] Although the material now available about the appellant is far more extensive than what was before the Judge, it is clear that the Judge recognised that he was dealing with a challenged and vulnerable young man. Our view is that the Judge’s summary at [16] of his sentencing remarks remains accurate, notwithstanding the additional material we have seen.
[20] Although it may be that the appellant, by reason of his personality and slight stature, finds prison more difficult than most, this is largely a matter for the prison authorities to address (as they now are doing). To the doubtful extent that this mitigating factor was not allowed for by the Judge it is more than compensated for by the overall leniency of the sentence imposed.

Result

[21] The appeal is dismissed.

Solicitors:
Raymond Donnelly & Co, Christchurch