[1] Mr David Lawson was found guilty before a jury following trial in the District Court at Nelson on charges of wounding with intent to cause grievous bodily harm, aggravated robbery and attempting to pervert the course of justice. He was convicted and sentenced on 1 April 2010 to a term of nine years’ imprisonment with a minimum period of non-parole (MPI) of six years.[1] He was also ordered to pay reparation of $5,000.
[2] Mr Lawson originally appealed against his conviction and sentence; that is both the full and minimum terms. However, through his counsel Mr Tony Bamford, Mr Lawson has abandoned his appeals against conviction and has not pursued his appeal against the full sentence. His appeal is limited to the imposition of an MPI and its duration.
[3] The point is thus narrow and having heard argument from counsel we are in a position to give judgment orally.

Facts

[4] The facts as found for sentencing purposes by Judge David McKegg, who also presided at trial, were materially as follows:

[2] The facts of the case are that on 3 October 2008 the victim of your offending, along with some friends, travelled from Wellington to Nelson to celebrate a wedding for one of that number. On that Friday evening the group were out on the town visiting various licensed premises. At approximately 1.00 am on the morning of 4 October, realising he had had more than enough to drink, the victim began to return to his accommodation at the top of Trafalgar Street. In the vicinity of the church steps in Selwyn Place, there was some accidental interchange between people which drew your attention to him. You and a co-offender then began to walk behind him, almost, it appears, shadowing him to the accommodation block where he was living. It is fairly clear from the evidence that you had formed an intention to rob a patently drunken man.

[3] Beside the accommodation, he has fallen to the ground. It appears then that you began to pat him down, looking for a property, and when he took some exception to that, he was then subjected to a fearsome beating and kicking.

[4] What followed was almost a murderous assault upon this man which left him very severely wounded and disabled. Your co-offender removed his wallet and you tried to take his watch, but you were unsuccessful. Later it appears you took possession of the wallet and used the money to buy fast food, as you left the scene.

[5] As a result of the extensive beating the victim apparently lay undetected for some time, being later found by someone else at the premises. He spent a number of days in hospital. He received multiple head wounds, a crush injury to his thumb requiring sutures, two broken bones in his left hand which is now permanently deformed, multiple severe bruising to his left and right forearm and torso, and a severe injury to his right eye which required emergency surgery and resulted in the total loss of that eye.

[6] I have read the victim impact report. It is clear that this man has suffered continual difficulties and considerable pain, and inconvenience and trouble since the time of his assault. He has difficulty returning to his chosen profession because of the difficulties with computer work; he needs to wear darkened glasses because of the brightness of light in his one remaining eye. His vehicle has had to be adapted to allow him to drive it. He will have the legacy of your actions for the rest of his life and it will never be the life that he expected to be able to live. He described the effect on him in the emotional harm report in some detail, even down to noting that the facial disfigurement that he received has caused him continual grief, and that every time he looks in the mirror he does not see the person that he used to be before you unleashed your assault on him.

[7] At the time of this event you were 17 years of age, you are now 19. You carried in to this affair some five prior offences on your criminal record, although the last of those was a charge of assault with intent to injure for which you were sentenced just a short time before this event. You received a final warning for charges of that sort at that time. Subsequently and whilst you were on bail for this matter, you accumulated nine further offences including two charges of assault on police and two charges of threatening to kill.

[5] The Judge identified a number of aggravating features as follows:

[8] This offence contains several seriously aggravating features. The first is the extreme violence that you used against this man and that included attacks with the hand as well as kicks and stamping with your feet. It also included a level of premeditation in the sense that you followed him for some time, and as I mentioned, almost as if you were stalking a vulnerable prey. I have outlined this serious injury that you inflicted which includes the damage to this man’s face, the loss of his eye, and the damage to his hand, there were other superficial damages. You unleashed an attack to this victim’s head which is seen as a seriously aggravating feature and you did it to facilitate the crime of theft which turned to a crime of aggravated robbery. Lastly, there was the vulnerability of your victim who had no prospect of defending himself from your attack.

[6] The Crown did not apply for an MPI which was apparently imposed on the Judge’s initiative for these reasons:

[13] I have turned my mind to a minimum period of imprisonment. In doing that I am mindful of your age but I am also greatly concerned that the period of one third of the sentence as a minimum sentence is insufficient for each of the purposes set out in s 86(2) of the Sentencing Act. Having regard to the purposes and principles of sentencing, and to the aggravating features of this offending which I have previously mentioned, to your lack of remorse and insight and to the likelihood of re-offending, I have reached a conclusion that a minimum period of imprisonment to be served for this offence, which by any calculation is a crime of serious violence, ought to be six years, and I order that accordingly.

[7] Mr David Boldt for the Crown accepts Mr Bamford’s submission that because the District Court Judge did not give either counsel an opportunity to be heard on the minimum sentence, this Court should deal with the issue de novo.

Decision

[8] The statutory power to impose an MPI is found in s 86 of the Sentencing Act 2002:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(d) protecting the community from the offender.

(3) Repealed.

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a) two-thirds of the full term of the sentence; or

(b) 10 years.

(5) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[9] A two-stage process is mandated. First, the court must determine whether to impose an MPI. We must be satisfied that Mr Lawson’s service of one-third of the full sentence – when a prisoner becomes eligible to apply for parole – would be insufficient to achieve the statutory purposes of sentencing including protection of the community. Secondly, if that threshold is satisfied, the court must determine the length of the MPI which must not exceed two-thirds of the full term. So in this case, where the full sentence is nine years’ imprisonment, the question is whether the Sentencing Act requires an MPI of more than three years but not above six years.
[10] Mr Bamford responsibly does not argue that the court should not consider imposing an MPI. However, at the first or threshold stage, he submits that an MPI is unnecessary. He says that Mr Lawson will be held accountable for his offending through the full term of nine years’ imprisonment which also achieves the purposes of deterrence and condemnation. An MPI would, he says, be disproportionate to the offending and to Mr Lawson’s culpability. He suggests it would be a disincentive for a young man to address his anti-social offending at the first opportunity.
[11] However, we agree with Mr Boldt that the possibility of Mr Lawson’s release after serving one third of his sentence would be insufficient to satisfy the statutory purposes. In particular, by specific reference to each of the purposes:

(a) The physical and emotional harm caused by Mr Lawson and his younger co-offender to the victim was grievous and permanent. His victim impact report makes for salutary reading. He is a young man whose previously full, active and rewarding life has been, and will continue to be, much reduced.

(b) Mr Lawson’s offending which was of gratuitous, sustained and violent nature and was directed significantly at his victim’s head and for the purpose of causing maximum harm, requires particular denunciation as does his callousness in leaving his victim in a seriously injured state.

(c) There are no means apparently available to achieve the purpose of Mr Lawson’s deterrence other than actual service of a lengthy term of imprisonment.

(d) Most importantly, the community requires whatever protection is available and for the longest period possible from a young man whose proclivity for mindless violence and lack of insight and remorse are chilling. The probation officer makes the self-evident point that Mr Lawson’s risk of reoffending is high. The possibility of his release after serving three years’ imprisonment for this offending is inconsistent with the safety of the community.

[12] The next step is to fix the term of the MPI. Mr Bamford properly emphasises that there is no presumption in favour of the maximum term. He submits that the MPI should be no more than 50 per cent of the full sentence, or four and a half years. He relies particularly on Mr Lawson’s age. He submits that anything more would stifle any hope for Mr Lawson and act as a disincentive for rehabilitation.
[13] Fixing the length of an MPI is essentially an exercise in value judgment informed by experience. Having taken all relevant facts into account, we are satisfied that this is one of those uncommon cases where, despite the offender’s age, the maximum MPI should be imposed. We have already identified the aggravating features. The brutality of Mr Lawson’s attack is reflected in medical evidence that the victim would likely have died if he had been left undiscovered for another 20 minutes or so. In that event, Mr Lawson may well have faced a murder charge.
[14] In our judgment, the public requires protection for the longest time lawfully available from a young man who presents a high risk of reoffending on release in the same violent and harmful way.
[15] Accordingly, we agree with Judge McKegg that an MPI of six years’ imprisonment was appropriate.

Result

[16] Mr Lawson’s appeal against sentence is dismissed.

Solicitors:
Bamford Law, Nelson, for Appellant
Crown Law Office, Wellington, for Respondent

[1] R v Lawson DC Nelson CRI-2008-042-3787, 1 April 2010.

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