[1] The applicant seeks to appeal against a sentence of four years imprisonment imposed after trial in the District Court at Palmerston North before Judge Lynch and a jury on two counts of wounding with intent to cause grievous bodily harm. The notice of appeal was filed out of time, so an extension of time for appealing is sought.

The facts

[2] The facts, as they emerged at trial, were described by Judge Lynch at sentencing in these terms:

[2] On Saturday evening, 12 April 2008 you were at the Mangatera Hotel in Dannevirke with a friend. The victim Bevan Hewitt was also there with friends from his rugby team. There was some sort of incident where you gestured in some way behind Mr Hewitt who was taking a shot on the pool table.

[3] Mr Hewitt himself did not see that but was told by one of his friends. You had gone out to the garden bar. Mr Hewitt followed you out to confront you about what it was said that you had done.

[4] I find that in doing so he had a number of his friends about him. There was some mutual pushing and shoving, but you ended up hitting Mr Hewitt with a bottle causing a cut on the left side of his face near his eyebrow. It was all broken up quickly and the hotel closed.

[5] Now that decision caused a great deal of heat and Mr Hewitt’s friends or those known to him were calling you out to fight. Inevitably this all did not stop there. Had wiser heads prevailed both on your part and the others involved this need not have gone any further.

[6] The inevitable confrontation outside the hotel rolled up Ruahine Road to the railway tracks. It is fair to say that you got the worst of that. You ended up on the ground having tripped up or [been] knocked down. Mr Hewitt accepted he had hit you at about 12 times to the head and face and that you were only able to hit him three or four times.

[7] You ended up running up the road, but had had your clothes taken off you by either Mr Hewitt or by his friends. You went to your cousin’s house arriving in your boxers. He gave you clothes and he and two others he was with returned down the hill with you. The purpose, I find, was to enable you to get your clothes and your cousin’s role, as he said, was to make sure you were not “jumped again”.

[8] What complicated matters for you is that you took a bottle with you. It appears you may have drunk out of that bottle at the cousin’s place when you arrived there, but you took it with you clearly to use it if you met trouble. Taking the bottle to an inevitable fight was inviting trouble which as day follows night occurred.

[9] In the fight that followed the jury clearly found that you cut Mr Hewitt in the side of the face with a piece of glass likely to have come from the bottle you had brought to the fight and had smashed as a result of throwing it or lobbing it at Mr Hewitt.

[10] Mr Hewitt sustained the larger of the lacerations which were shown in the photographs, which was still plainly able to be seen when he gave his evidence 16 months later. The laceration was four centimetres in a C shape. There were two other lacerations two centimetres in length, one being from the garden bar assault. How the other occurred is not clear. The lacerations required stitches, but it is not known how many.

The Judge’s approach

[3] In fixing a starting point the Judge noted the Crown submission that sentencing should proceed on a global basis given that the offending occurred on a single night. He said that there was a clear break in the proceedings but regarded it as “plainly a continuing offence”. He considered that there is some force in looking at the offending as a whole. He referred to four features of the offending as follows:

[32] The offending involved:

(a) An attack with a weapon. In the garden bar a bottle. Later outside the hotel, again a bottle whether it be broken or shard or piece of it.

(b) The second phase of the incident resulted in a moderate to serious injury to the victim’s face. The scarring appears to be with the victim for life. The injury in the garden bar while serious was certainly not in the category of seriousness the second phase resulted in.

(c) Both incidents involved attacks to the head. The first incident in the garden bar, a classic attack to the head. The second is more technically an attack to the face but of course it is generally the head area and an injury to the eyes could have resulted.

(d) Premeditation. In relation to the garden bar it could not be said with any confidence that there was any great planning or premeditation and the Crown do not suggest so. However, in bringing the bottle back to the fracas for the second incident introduces the spectre of premeditation. While I do not agree with the Crown that violence was the only possible outcome, it was clearly within contemplation. In my assessment of the evidence, what happened occurred much more spontaneously in the carpark than the Crown would accept. This was not like returning to a fight with a knife. It is clear you threw or lobbed the bottle at Mr Hewitt, at that stage then getting rid of the very weapon the Crown says you brought back to use on Mr Hewitt. I do not accept that there was any great degree of premeditation in relation to the second phase.

[4] The Crown submission at sentencing was that the offending as a whole fitted comfortably within band 2 of Taueki.[1] The submission of counsel for the applicant was that this was a band 1 matter, and that provocation and excessive self defence should be taken into account.
[5] The Judge placed the circumstances of the offending “at the top of band 1 on the cusp of band 2” of Taueki and adopted a starting point of four and a half years. He referred to the submission that there should be a reduction reflecting provocation and excessive self defence, and noted that he could not reject the proposition that the jury may have reached its verdict on the basis that the applicant had acted in self defence but that his response was unreasonable. He also accepted that, in respect of the second phase of events, the applicant had clothing taken off him and had returned to get it. The Judge said that understandably what happened would have angered the applicant. He described that as provocative but not justifying the applicant’s actions. Taking those matters of excessive self defence and provocation into account, the Judge reduced the starting point by six months. The starting point which the Judge adopted, using the term as defined in Taueki, was accordingly four years.[2]
[6] The Judge considered personal aggravating and mitigating factors. He recorded, as a mitigating factor, remorse. As an aggravating factor, he noted that the applicant has previous convictions, and that the offences had been committed while subject to a sentence of community work which was not being complied with. He held that those aggravating and mitigating factors balanced out. The end sentence was accordingly four years imprisonment.

Submissions

[7] Mr Forster for the applicant submits that the sentencing Judge erred in his approach when fixing a four and a half year starting point and that the resulting end sentence of four years imprisonment was manifestly excessive. He submits that there were four errors of approach in the way in which the sentence was reached.
[8] First, he submits that the Judge erred in considering both counts together when assessing the start point. He submits that the Judge should have identified a lead charge, fixed a starting point for that charge and then considered an uplift to reflect the second charge. He submits that the Judge’s failure to adopt that approach has had the effect of overriding a consideration of the totality principle in s 85 of the Sentencing Act 2002.
[9] Second, counsel submits that the Judge did not evaluate the seriousness of the factors bearing on the assessment of the appropriate starting point and sentencing band, as required by Taueki.[3]
[10] Third, he submits that, in taking the mitigating factors of provocation and excessive self defence into account, the Judge has failed to give proper recognition to the effect of those factors in reducing the seriousness of the offending.
[11] Fourth, counsel submits that fixing a single starting point for both offences has resulted in there being no proper assessment of the overall totality of the offending. He submits that the effect has been to lead to a sentence which is manifestly excessive. In support of the proposition that the sentence is manifestly excessive, counsel places reliance on the comparability of the circumstances with those in R v Walker.[4]
[12] Counsel for the Crown submits that the applicant was fortunate that the offending was placed within band 1 of Taueki, given the presence of what counsel submits are four of the aggravating factors identified in that case. The Crown submits that the Judge could justifiably have adopted a higher starting point. It submits that provocation and excessive self defence were relevant, but not strong mitigating factors, and the six months reduction was appropriate. The Crown submits that the end sentence was, if anything, lenient.

Discussion

[13] We do not consider the Judge erred in approaching the circumstances of this offending as a whole. While there were clearly two phases to the incident, with separate charges arising out of each phase, the two phases were closely connected both in time and in circumstances. However the task was approached, the Judge had to determine an appropriate starting point for the totality of the offending, having regard to all of the circumstances of the offending. The two incidents were clearly a connected series of offences, so that concurrent sentences were appropriate under the guidance given in s 84(2) of the Sentencing Act. Under s 85(4), the most serious offence must receive the penalty that is appropriate for the totality of the offending. It would have been possible for the sentencing Judge to approach the matter in the way urged by Mr Forster, of selecting one of the offences as the lead offence, fixing a starting point for that offence, then adding an uplift to account for the second offence, reflecting the totality principle in the extent of that uplift. But that approach was not mandatory. The circumstances of the total incident, and the closely related nature of the offending, were such that the Judge’s approach of looking at the offending as a whole was available. In our view, it was the better approach in this case. For these reasons, we consider that the Judge was right to have regard to the totality of the offending in fixing the starting point.
[14] We do not accept the submission that the Judge did not appropriately evaluate the seriousness of the factors which he identified as contributing to the gravity of the offending. The factors were discussed at [3], set out above. It is apparent from the Judge’s placement of the offending, (at the top of band 1 on the cusp of band 2), that he must have evaluated the seriousness of those factors. His fixing of the offending at the margin between band 1 and band 2 despite the presence of four of the aggravating factors referred to in Taueki[5] clearly demonstrates a recognition that the seriousness of those factors in this case was at the lower end of the scale. Had the Judge simply noted the presence of those aggravating factors, that would, in the light of the guidance given in Taueki,[6] have led to a placement of the

[14] offending at the top of band 2, or even within band 3. The Judge has clearly avoided the danger of a formulaic or mathematical approach warned against in Taueki,[7] by undertaking the required evaluative task.
[15] We do not consider that the Judge’s allowance for provocation and excessive self defence was inadequate. The Judge allowed an explicit reduction of six months for those factors. The element of excessive self-defence could apply only in the first stage of the incident, where the complainant (who had taken exception to gestures by the applicant) had initiated the confrontation. The second, and more serious, stage of the incident was initiated by the applicant. The element of provocation could apply only at this second stage. The provocation given by the removal of the applicant’s clothing was tempered by the fact that the applicant had left the scene, and returned later. An allowance of six months to reflect those factors was within the range available to the sentencing Judge.
[16] We do not agree with the submission that there was no proper assessment of the overall totality of the offending. The approach adopted by the sentencing Judge has clearly led to a focus on the totality of the offending as a whole, in a way which appropriately reflects the totality principle.
[17] On the comparison with Walker, counsel submits that Walker was a more serious case than this and that in that case a starting point of four years was taken which counsel contrasts with a starting point of four and a half years in this case. As we have noted at paragraph [8], the starting point, used in the sense described in Taueki, was four years. The mix of aggravating and mitigating factors of the offending is different in the two cases. That will always be the case when different cases are compared. A comparison with Walker does not lead to the conclusion that the starting point adopted here was manifestly excessive.
[18] We consider that the end sentence in this case is within the available range, and that any appeal accordingly must fail.

Extension of time

[19] That renders largely academic the question of whether an extension of time should be granted. Here, it appears that the notice of appeal was signed within time, but that it was not filed for over a month. The reasons for that are not explained. If the appeal had merit, some further investigation might be required to determine whether an extension of time is justified. As we have reached the view that any appeal must fail, we consider that the appropriate outcome is to refuse the extension of time sought.

Result

[20] For these reasons, extension of time to appeal is refused.

Solicitors:
Crown Law Office, Wellington

[1] R v Taueki [2005] 3 NZLR 372 (CA).
[2] At [8].
[3] At [30].
[4] R v Walker CA2/06, 28 June 2006.
[5] At [31].
[6] At [38] and [40].
[7] At [30].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/162.html