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Court of Appeal of New Zealand |
Last Updated: 16 November 2011
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CA441/2011
[2011] NZCA 566 |
BETWEEN VISHAL NAND
Appellant |
AND THE QUEEN
Respondent |
Hearing: 3 November 2011
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Court: Harrison, Miller and Asher JJ
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Counsel: T M Saseve for Appellant
M J Lillico for Respondent |
Judgment: 8 November 2011 at 3.30 pm
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
[1] Vishal Nand appeals against a sentence of two years’ imprisonment imposed upon him by Judge Winter for charges of injuring with intent to injure and threatening to do grievous bodily harm.[1]
[2] Mr Nand had lived with the complainant Ms X, with whom he had been in a relationship for approximately five years. They had both signed the tenancy agreement for their rented home. But their relationship was dissolving. Some three days prior to the incident that led to the charges they had commenced the process of separation. They had a four month old child and on Monday, 29 March 2010 Mr Nand had been at their home. He had gone out and on his return had found there to be other cars at the address and people inside. Mr Nand became concerned that Ms X was forming a relationship with another man Mr A. He decided to confront Ms X and those inside.
[3] Mr Nand returned to the address with a gas-powered air pistol and two associates whom he had asked to support him. He went to the front door and knocked. When the door was opened and then shut on him, he smashed his way through the door. With his two associates he entered the home. He and his associates proceeded to pursue Mr A. In an attempt to protect himself Mr A climbed under a bed to hide. Mr Nand, in extricating Mr A from under the bed, pulled his hair. He kicked and punched him around the head and body.
[4] One of Mr Nand’s associates then forcefully took Mr A’s car keys from his pocket, together with his cellphone. Ultimately that associate drove the vehicle away and damaged it. Meanwhile Mr Nand had approached Ms X. He pointed the gas-powered air pistol at her and said “I will fuck you up”. He demanded that she tell him who the men in the house were.
[5] After being convinced that the men in the house were not in a relationship with Ms X the offenders left the address leaving Ms X crying and another male who was in the house distressed. Mr A was admitted to hospital and his injuries were found to include bruising to his head, legs and arms as well as several small cuts to his head. His injuries were not in the end serious. Since the offending, Ms X has felt afraid to stay at the address, and has moved.
The sentencing decision
[6] A starting point of 33 months’ imprisonment was adopted by the Judge, being 30 months on the injuring with intent to injure conviction plus three months to reflect the threatening to do grievous bodily harm conviction. There was a 25 per cent reduction for the guilty plea, bearing in mind Mr Nand’s youth and factors personal to him, including his efforts to rehabilitate himself. That left an end sentence of two years’ imprisonment. The Judge considered whether home detention would be a suitable penalty. He concluded that the sentence he imposed could not be home detention given the seriousness of the offending, the need for deterrence and to deter others from home invasions of that type.
[7] In assessing culpability and the appropriate starting point the Judge referred to R v Mako.[2] However, that decision concerns aggravated robbery and had no application. He also referred to R v Harris[3] and Knight v Police[4] observing that he found them a useful reference point in assessing culpability. He observed that the injuries to the victims in those cases were slightly worse than the case before him. We accept Mr Saseve’s submission that in fact the injuries inflicted were considerably worse in those cases, as was the level of violence. In Harris the victim lost consciousness twice during the attack and suffered a severe black eye, bruising over most of her body and grazing over her face, legs and body.
[8] Harris provides the sentencing guideline for injury with intent to injure. Band one of Harris applies where there is little injury and few aggravating features, band two where the injuries are moderate and band three for serious injury. Mr Lillico in his submissions proposed that the case fell within band two of Harris. The Judge did not state what band he applied, but the starting point he chose indicates band three.
[9] The Judge’s mistaken reliance on Mako, and his interpretation of Harris, may well have influenced his approach to the starting point. This offending did not fall within band three of Harris. We are satisfied that for the reasons we will now set out, the starting point was too high, and there was inadequate recognition of mitigating factors personal to Mr Nand.
The starting point
[10] The aggravating features referred to by the Judge were the home invasion, the fact that two associates were involved, the degree of premeditation, albeit rudimentary, and kicking and punching to the head. There was also the use of the gas-powered air pistol in relation to the threatening to do grievous bodily harm charge.
[11] However, all these aggravating factors must be seen in context. There was some immediate planning that led to the assault in the obtaining of the support of two friends and the air pistol. But these actions took place quickly and were the spontaneous response of a jealous partner to seeing other people at the address. While there was a forceful break-in to the home, Mr Nand was one of the tenants of that property and had been there with permission through the course of that day. There may be a question whether the entry or presence was actually unlawful. Nevertheless, the violent entry was an aggravating factor. The punching and kicking to the head, while an aggravating factor, must be seen in the context that soft shoes were worn, and the injuries do not indicate any particular degree of savagery.
[12] Thus, while there were three aggravating factors in relation to the injuring with intent to injure, none of these can be regarded as of the most serious type. The minor nature of the ultimate injuries must also be considered. While it is possible to justify the placement of the offending within band two of Harris, in that category sentences of only up to two years’ imprisonment can be justified. It was not within band three, and the 30 month starting point was too high. Any assessment of culpability must take into account the fact that this was essentially a spontaneous and emotional reaction by a disaffected lover involving violence, but not a planned assault with calculated brutality.
[13] Taking these factors into account, at the very most we consider that a sentence of two years’ imprisonment was a justified starting point on the injuring with intent to injure charge. The three month uplift for the threatening to do grievous bodily harm charge applied by the Judge was if anything modest, but when considered alongside a 24 month starting point on the lead offence is appropriate, resulting in an end starting point of 27 months’ imprisonment.
Personal mitigating factors
[14] The Judge then proceeded to give a discount of 25 per cent for the factors personal to Mr Nand and the guilty plea. The guilty plea was entered at the first reasonable opportunity, given the way the pre-trial procedures transpired and the maximum discount for the guilty plea was therefore appropriate. However, in addition, a separate discount should have been given for other personal factors.
[15] Mr Nand had no convictions of a criminal type, and had a sound work history. He had a conviction for contravening a protection order in relation to Ms X. Some months after this offending he had, in breach of a protection order, gone around to her home and had an angry exchange with her from the road. This does not appear to have been serious and it was dealt with by him being required to come up for sentence if called upon. Judge Winter referred to Mr Nand as a first offender. Given the minor and related nature of this later offending we consider that he was right to do so.
[16] Mr Nand’s youth (he was 21 at the time of the offending) was also relevant, although it could only be a minor factor. Of more significance, he was also remorseful. The probation officer in his report noted elements of regret that were based on his own predicament, but stated that he was “genuinely disturbed” by what had occurred. The departmental risk assessment test indicated a very low risk of re-offending.
[17] When the mitigating factors of genuine remorse, good character and youth are considered in the round a particular discount for these factors was required. Although the Judge noted the factors, he did not apply any specific discount for them in the 25 per cent deduction for the guilty plea. If a 10 per cent discount is given to account for those factors to a starting point of 27 months, and 25 per cent is then deducted for the guilty plea, the net sentence of imprisonment is 18 months.
Conclusion
[18] The sentence of two years’ imprisonment was manifestly excessive and should be substituted by a lesser term of imprisonment. Mr Nand has now served almost seven months in prison. Mr Saseve does not ask us to consider home detention, but seeks a reduction in the term of imprisonment. We are prepared to allow the appeal on this basis.
Result
[19] The appeal is allowed. The sentence of two years’ imprisonment is quashed and substituted by a sentence of 18 months’ imprisonment. The other orders made against Mr Nand in the District Court are not affected by this decision.
Postscript
[20] We direct that a copy of this decision be sent to Mr Nand’s co-accused Mr V Taufa who was sentenced to two years and six months’ imprisonment, although we emphasise that if Mr Taufau chooses to seek leave to appeal out of time that the factors relevant to sentencing may well be very different than those that apply to Mr Nand.
Solicitors:
Crown Law, Wellington for Respondent.
[1] R v Nand
DC Manukau CRI-2010-092-7033, 15 April
2011.
[2] R v
Mako [2000] 2 NZLR 170
(CA).
[3] R v
Harris [2008] NZCA
528.
[4] Knight v
Police HC Wellington CRI-2010-485-59, 22 July 2010.
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