Byford v R [2011] NZCA 316 (8 July 2011)

Last Updated: 13 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA710/2010 [2011] NZCA 316

BETWEEN ROY BRUCE BYFORD Appellant

AND THE QUEEN Respondent

Hearing: 1 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: D R F Gardiner for Appellant S B Edwards for Respondent

Judgment: 8 July 2011 at 2 pm

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

2. The appeal is allowed to the extent that the order that the appellant must serve a minimum period of imprisonment of three years is quashed.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant pleaded guilty to charges of kidnapping and burglary. Following a disrupted sentencing hearing, Judge Moore sentenced him to imprisonment for five years four months on the kidnapping charge and three years concurrently on the burglary. The Judge also imposed a minimum non-parole period of three years.[1]
[2] The appellant appeals against the sentence imposed on him.
[3] The appeal is out of time. The sentence was imposed on 16 April 2010. The appeal was not filed with this Court until 26 October 2010. However the appellant has always intended to appeal. He filed the initial appeal with the High Court in error. In the circumstances the Crown does not oppose the application for an extension of time. We grant it.

The offending

[4] In the early afternoon of 22 September 2009 the appellant went to an address in Titirangi. The owners of the property were not known to the appellant. He says he went there to recover jewellery taken by the occupants from some friends of his. Although the owners were not at home, their cleaner, a 66 year old woman, was. When the victim answered the door she was confronted by the appellant. He grabbed her neck with both hands and forced her back inside the address. He shut the door and pushed the victim onto the ground, face first. He then dragged her by the wrists across the floor into the laundry where he wrapped the tape that he had brought with him around her mouth and eyes, while repeatedly telling her not to look at his face. He then used other material he had brought with him to bind her wrists behind her back. The appellant then attempted to force the victim into the laundry cupboard. She struggled so he left her lying on her stomach on the laundry floor. The appellant then went through the house and stole items to a value of $7,235. In the meantime the victim managed to free herself. She escaped from the house onto the road where she was able to obtain help.
[5] The appellant declined to comment when initially spoken to by the police. The pre-sentence report notes that he says before the offending he had been smoking P with some female friends, the same ones who had taken him to the property to recover their jewellery. The pre-sentence report records the appellant displayed no empathy for his victim and he sought to minimise his offending.

Sentencing process

[6] The sentencing process was a difficult one for the Judge, largely because of the appellant’s actions. The appellant was represented by counsel (not Mr Gardiner) when the guilty pleas were entered. Counsel had also prepared full submissions for the sentencing hearing. However, at the outset of the sentencing hearing the appellant’s counsel advised the Court the appellant had withdrawn his instructions. The appellant then challenged the jurisdiction of the Court to sentence or otherwise deal with him. The appellant’s behaviour was such that the very experienced District Court Judge felt he was left with no alternative but to have the appellant removed from the courtroom. The Judge imposed the sentence on the appellant in his absence, recording that that was the first time he had been forced to do so in his 25 years as a Judge.
[7] The Judge noted there were no tariff cases for the offences of kidnapping and burglary. He took the view the offending was serious and premeditated. The appellant had gone to the property armed with tape and other material in order to subdue and restrain any occupant. Items to a significant value were taken. The Judge considered a sentence of four years for the kidnapping and a further four years for the burglary would be justified. However, to take account of the totality principle he took seven years as the starting point. The Judge tested that by reference to sentences for aggravated robbery, discussed by this Court in R v Mako[2] and which had similar features to the appellant’s offending. He was satisfied that seven years was appropriate.
[8] The Judge uplifted the starting point by one year to take account of the appellant’s history of offending. He then applied a full discount of one-third for the early guilty plea which led to the end sentence of five years four months’ imprisonment.
[9] Although the Crown had not sought a minimum non-parole period the Judge then went on to impose a minimum non-parole period of three years’ imprisonment, slightly less than 60 per cent of the lead sentence. During the course of his sentencing notes the Judge noted the potential psychological issues the appellant apparently suffered from but declined to accede to the suggestion by the probation officer that the matter be remanded for a further psychological report.

The appeal

[10] The appellant challenges the end sentence of five years four months and the minimum non-parole period of three years as manifestly excessive. Mr Gardiner suggested that the Judge may have been influenced by the appellant’s behaviour in imposing the sentence. He submitted the Judge had failed to give sufficient consideration to the appellant’s psychological issues and, in particular, the possibility the appellant had diminished intellectual capacity or understanding in relation to his offending which, if established, would have been a mitigating factor the Judge was obliged to take into account under s 9(2)(e) of the Sentencing Act 2002.
[11] Mr Gardiner also sought to downplay the seriousness of the incident. He suggested that the primary object was a burglary and the kidnapping was merely a by-product. He categorised the appellant’s attempts to restrain the victim as ham-handed and ineffective.
[12] Mr Gardiner also submitted that the Judge was wrong to impose a minimum period of imprisonment, particularly without giving the appellant the opportunity to be heard on that matter.

The psychological report

[13] At the conclusion of the hearing before this Court on 1 March 2011 we adjourned the hearing in order to obtain a psychological assessment of the appellant under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The report writer was requested to provide a view as to the extent to which the appellant’s offending arose from diminished intellectual capacity or understanding and, if that was a contributing factor, whether that diminished capacity was a consequence of a prior brain injury or not.
[14] Ms Blenman, a registered psychologist, has now provided the Court with a psychological report.
[15] Ms Blenman confirmed that the appellant had suffered traumatic brain injury in 1995. She confirms that the appellant is not “mentally disordered” within the meaning of that term in the Mental Health (Compulsory Assessment and Treatment) Act 1992. While he suffers from significant cognitive difficulty as a result of the traumatic brain injury he suffered in 1995, in her opinion his current offending cannot be directly attributed to the injury. It was more likely to be as a result of his pre-existing personality attributes together with his long history of substance abuse, both of which were exacerbated by the brain injury. Ms Blenman records that the appellant acknowledged that he was under the influence of methamphetamine at the time of the offending.
[16] Counsel have had the opportunity to address further submissions in relation to the report. Mr Gardiner submits that the report confirms the appellant has significant cognitive difficulties which affected his moral culpability in relation to his past and current offending and which support a reduction in the sentence to reflect his diminished responsibility.
[17] Ms Edwards argued that a cautious approach needs to be taken to the submission that mental or intellectual impairment is a mitigating factor where public safety concerns are raised: R v Clarke,[3] R v Taueki,[4] and R v Milford.[5] She also submitted that, at most, the brain injury had exacerbated the appellant’s pre-existing anti-social personality traits and the effects of his long history of substance abuse. She submitted the report did not establish a significantly causative link between the current offending and the underlying brain injury.

Decision

[18] The offending in this case was serious. The appellant set out to burgle the property in question. He prepared himself to overcome the resistance of anyone who might have been at the property by taking the tape and other material to restrain them. He used force to overcome the victim. He bound both her mouth and eyes and tied her hands behind her back. We reject Mr Gardiner’s submission that because the appellant told the victim not to look at him that might have somehow diminished the effect on her. If anything it was more likely to scare her further and lead her to be afraid of what the appellant might do if she did see his face. Her victim impact report confirms that she was frightened and scared throughout. At one time she thought the appellant might rape her. The incident has understandably had a serious effect on her.
[19] The starting point of seven years for the totality of the offending was within range in the circumstances of this case. An uplift was required to that start point for the personal aggravating feature of the appellant’s bad criminal history. At the age of 50 the appellant has an extensive list of previous offending primarily for dishonesty (including burglaries) but also for assault (including four male assaults female and two other common assault convictions). The one year uplift was open to the Judge.
[20] The Judge gave a full discount of one-third for the early guilty plea. The only issue is whether a further reduction was required on the basis the appellant suffered from diminished intellectual capacity which affected his understanding and reduced his culpability
[21] We have given this issue careful thought. To the extent the appellant could be said to have any diminished intellectual capacity as a result of his brain injury, thereby raising s 9(2)(e), little credit could be given for that because it is apparent the offending in this case was induced by his consumption of methamphetamine. That brings into play s 9(3) of the Sentencing Act, which provides:

Despite subsection (2)(e), the Court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).

[22] Arguably, some slight reduction might have been made on account of the appellant’s brain injury. Against that, however, the discount for the guilty plea was generous and, of course, exceeds the discount that would have been possible on the Supreme Court’s guideline for discounts for guilty pleas. Under Hessell v R, decided after this sentencing, discounts for guilty pleas must not exceed 25 per cent.[6]
[23] In all the circumstances, the appellant has not established that the overall sentence of five years four months’ imprisonment was excessive or reached by inappropriate reasoning. We confirm that sentence.
[24] However, we are concerned at the process by which the Judge came to impose a minimum period of imprisonment in this case. The Crown did not seek a minimum period. Despite that, the Judge took it upon himself to impose a minimum period of imprisonment, referring to the obvious danger the appellant presented to the community.
[25] However, the appellant was not present when the sentence was imposed. As the Crown had not raised the issue and the Judge did not have any submissions from the appellant’s counsel on this point, the appellant was not given the opportunity to address the Court on it. This Court has previously criticised such an approach: R v Boyd,[7] R v Clayton,[8] and R v Grant.[9]
[26] Further, the imposition of a minimum period of imprisonment in a situation where there are psychological issues, albeit that they may not have led to diminished intellectual capacity, was considered by this Court in the case of R v Lucas-Edmonds.[10] There the Court noted:

[43] Given that, on the basis of the reports before him, there was a clear expectation that the appellant would require treatment and that there was to be a concerted effort to bring treatment to him before his release into the community, we do not consider there is much prospect of the appellant being released when he had served one-third of his sentence and achieved parole eligibility. The imposition of a minimum term and the unusual circumstances of this case add little to the s 86(2) criteria of accountability, denunciation, deterrence and community protection. With respect, the Judge gave only brief reasons for exercising his s 86(1) discretion in favour of the minimum term. The only certain consequence of a minimum term would be to delay the arrival of effective treatment to the appellant, there being no dispute such treatment was needed.

[27] The above comments are apposite to the present case. Given the appellant’s past history there is little prospect of his being released after only one-third of his sentence. We also note the recommendation of Ms Blenman that the appellant should be referred to the Department of Corrections Community Probation and Psychological Services for treatment to address his offending. Preferably such treatment would be completed while he is in custody and before his release into the community.

Result

[28] The appeal is allowed to the extent that the minimum period of imprisonment is quashed. The appeal against the lead sentence of five years four months’ imprisonment is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Byford DC Waitakere CRI-2010-090-777, 16 April 2010.
[2] R v Mako [2000] 2 NZLR 170 (CA).
[3] R v Clarke CA225/98, 3 September 1998.
[4] R v Taueki [2005] 3 NZLR 372 (CA) at [45].
[5] R v Milford [2008] NZCA 148 at [32].
[6] Hessell v R [2010] NZSC 135, [2011] NZLR 607 at [75].
[7] R v Boyd CA89/03, 24 June 2003 at [16].
[8] R v Clayton [2008] NZCA 348 at [22]–[23].
[9] R v Grant [2009] NZCA 266 at [17]–[18].
[10] R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.