Graham v R [2011] NZCA 131 (4 April 2011)

Last Updated: 13 April 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA717/2010 [2011] NZCA 131

BETWEEN RONALD JOEL GRAHAM Appellant

AND THE QUEEN Respondent

Hearing: 31 March 2011

Court: Glazebrook J, Simon France and Lang JJ

Counsel: J C Hannam for Appellant L C Preston for Respondent

Judgment: 4 April 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

[1] Mr Graham was found guilty following a trial in the District Court at New Plymouth on a charge of wounding with intent to cause grievous bodily harm. On 1 October 2010 Judge Roberts sentenced him to five years imprisonment.[1]
[2] Originally Mr Graham appealed against both conviction and sentence. Prior to the hearing, he abandoned his appeal against conviction. He maintained his appeal against sentence on the grounds that it was wrong in principle and manifestly excessive.

Facts

[3] On the evening of 28 October 2009 Mr Graham was drinking at his sister’s house in New Plymouth. The victim of his offending was a person who called at the address to visit a friend. He began drinking with Mr Graham after he discovered that his friend was not at home.
[4] Mr Graham and the victim decided to drink outside so that they would not disturb other persons in the house who were sleeping. A short time later, the victim went back inside the house to collect his property prior to leaving the address. When he returned outside to say goodbye to Mr Graham, he found that Mr Graham had gone back into the kitchen. When Mr Graham came out, the victim noticed that he was talking to himself and acting strangely.
[5] Mr Graham approached the victim and said “come here mate”. The victim thought that Mr Graham wanted to hongi. Mr Graham then grabbed the victim by the back of the head with his left hand, and put a serrated steak knife to his throat. He then swept the knife across the victim’s throat, causing a shallow wound approximately 120 millimetres long. The victim lifted up his right hand to protect himself, and thereby sustained a significant wound to his right thumb. This wound immediately began bleeding profusely.
[6] The victim then fled the scene on foot. Mr Graham chased him for a short distance before the victim made it to the safety of a petrol station, from where an ambulance and the police were called. The victim declined to have medical treatment for his wounds, but in the early hours of 29 October he made a written statement to the police in which he described how he had come to receive his injuries.
[7] The victim was a reluctant witness at trial. He maintained that he had been intoxicated on the evening in question, and could not remember anything about the incident that gave rise to the charge. The Crown obtained an order declaring him hostile, and it then relied upon the statement the victim had made to the police on 29 October 2009 to prove the charge.

The sentence

[8] The Judge noted that the starting point for the sentence to be imposed in respect of Mr Graham’s offending was governed by the decision of this Court in R v Taueki.[2] In that case the Court set out[3] guidelines for starting points for violent offending involving identified features.[4]
[9] The Judge considered that Mr Graham’s offending involved extreme violence, premeditation, serious injury and an attack on a vulnerable victim. On that basis he viewed Mr Graham’s offending as falling within Band 2 in Taueki, justifying a starting point of between five and ten years imprisonment. He considered a starting point at the lower end of Band 2 was appropriate. He therefore adopted a starting point of five years imprisonment.
[10] Mr Graham has previous convictions for common assault (three), assaulting a female, possession of an offensive weapon and assault on the police. These related to events occurring between 1987 and 2010. The most recent assault convictions were for offending in March and July 2010, apparently within a domestic context. The Crown asked the Judge to apply an uplift to reflect Mr Graham’s previous convictions.
[11] The Judge was ultimately persuaded not to apply an uplift because of information contained in a letter that Mr Graham had written to him in which he had described his upbringing and earlier achievements. There were, however, no mitigating factors. The Judge therefore imposed an end sentence of five years imprisonment.

Grounds of appeal

[12] Counsel for Mr Graham contended that the Judge erred in concluding that Mr Graham’s offending involved extreme violence, premeditation, serious injury and an attack on a vulnerable victim. He submitted that none of those factors were present on the evidence. He accepted, however, that the offending involved an attack with a weapon to a vulnerable part of the victim’s body. Viewed in context, counsel submitted that Mr Graham’s offending properly fell within Band 1 in Taueki, thereby justifying a starting point between three and six years imprisonment. He argued that the offending fell towards the lower end of Band 1.

Decision

[13] As this case demonstrates, difficulties can arise when an attempt is made to apply the factors listed in Taueki to the facts of individual situations. Whether or not violence can be said to be “extreme”, for example, depends to a large extent upon the perception of the sentencing Judge. Even impulsive offending will almost inevitably involve a degree of premeditation. Many victims will have been vulnerable to some extent. Whether or not a particular factor truly aggravates offending will be a question of fact and degree requiring judicial assessment. The appropriate approach is to evaluate the seriousness of the offending using the factors and examples listed in Taueki as a guide. This will indicate where the offending fits within the identified bands.
[14] In the present case, the two men had been socialising up until Mr Graham came out of the kitchen. There had been no earlier indication that Mr Graham might act in the way that he did. There was obviously a degree of trust between the two men. Mr Graham’s offending therefore involved an unprovoked attack on a person who had no opportunity to prepare for, or defend himself against, an attack. To that extent the victim could be said to have been vulnerable.
[15] The jury’s verdict confirms that Mr Graham wounded the victim with the intention of inflicting really serious injury. It involved the use of a knife, and was directed to an extremely vulnerable part of the victim’s body. The shallow nature of the wound was a matter of chance, and bore no relationship to Mr Graham’s intention when he inflicted it. The victim was extremely fortunate not to have suffered a life threatening injury. Although it may be debatable whether the violence could properly be described as extreme, it was undoubtedly serious.
[16] An element of premeditation was also present, because Mr Graham must have gone into the kitchen to fetch the knife. We accept, however, that it is unlikely that the attack was the subject of significant prior planning.
[17] In Taueki this Court said that a starting point towards the lower end of Band 1 will be appropriate in the case of an impulsive street attack, where no weapons are involved and the injuries to the victim do not have a lasting effect.[5] An impulsive domestic assault on a vulnerable victim, where no weapons are used and the injury does not have a lasting effect, will justify a starting point of around four years imprisonment.[6]
[18] Although Mr Graham’s offending was not a street attack or a domestic assault, it occurred in a context where the victim was vulnerable to the extent described above. Moreover, whilst the offending may to some extent be described as impulsive, it has the aggravating factor that it involved the use of a weapon. We accept that the wound is unlikely to have had a lasting effect, but this must be balanced against the fact that it was inflicted to a vulnerable part of the victim’s body.
[19] Taking those factors into account, we consider that the offending easily fell towards the top of Band 1 or the lower end of Band 2 in Taueki. Viewed in that light, a starting point of five years imprisonment is not outside the available range.
[20] Before disposing of the appeal, we observe that the attack occurred in circumstances suggesting a degree of mental instability on Mr Graham’s part. The Judge did not have the benefit of a psychiatric report, so it remains a matter of speculation as to what may have prompted Mr Graham to act in the way that he did. We would hope, however, that the prison and parole authorities are taking steps to ensure that the underlying cause of the offending is explored and, if necessary, treated in an appropriate manner.

Result

[21] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Graham DC New Plymouth CRI-2009-043-4207, 1 October 2010.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] At [34]–[41].
[4] These were listed at [31]–[33].
[5] At [37](a).
[6] At [37](b).