Undersen v R [2011] NZCA 57 (9 March 2011)

Last Updated: 15 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA501/2010 [2011] NZCA 57

BETWEEN SHAD DAMIE UNDERSEN Appellant

AND THE QUEEN Respondent

Hearing: 23 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: R A B Barnsdale for Appellant J M Jelas for Respondent

Judgment: 9 March 2011 at 3 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1] The appellant pleaded guilty to 14 charges involving two complainants, his former partner and a police office. Thirteen charges involved his former partner: male assaults female (2), threatening to kill (6), unlawful possession of a firearm and ammunition, and dishonesty offences (3). The remaining charge arose from the aggravated injury of the police officer. A sentence totalling nine years imprisonment was imposed by Judge Wolff in the District Court at Hamilton.[1] There was a minimum period of imprisonment of six years.
[2] This appeal against sentence relies on three grounds:

(a) the cumulative sentence for the offending against the police officer breached the totality principle;

(b) there was insufficient credit for the appellant’s “youthful disadvantages and attempts to resolve them”;

(c) the minimum period of imprisonment was manifestly excessive.

The offending

[3] In January 2009, a relationship developed between the appellant and the first complainant and the appellant moved into the first complainant’s house two months later. Also living at the house was the complainant’s five year old son.
[4] Following a confrontation between the appellant and first complainant in March 2009, the appellant picked up a pillow from the bed and forcefully placed it over the complainant’s face, putting his weight against the pillow. The complainant was unable to breathe and feared for her life. After several seconds the appellant released his grip, and removed the pillow. These events gave rise to Count 1 (male assaults female).
[5] Count 2 (dishonestly obtaining a pecuniary advantage) and count 3 (threatening to kill) arose from events about three months later. The appellant forced the complainant to transfer ownership of her car to his cousin in lieu of a drug debt he owed. He forced compliance by holding a sharp metal spear to the complainant’s ribs and then to the bottom of her neck. As he did so he threatened to kill her.
[6] Soon after this the complainant sold her house and was left with approximately $8900 in her bank account. She gave the appellant $3000 when he promised to make a new start. About 10 days later he demanded the balance and she initially refused. He then punched her on the shoulder and threatened to kill her son, following which he began walking towards her son’s bedroom saying he was going to “get the little cunt”. Thereupon the complainant paid $4980 into the appellant’s bank account. He then left the complainant’s home. Counts 4 (dishonestly obtaining a pecuniary advantage) and 5 (threatening to kill) resulted.
[7] When the appellant returned a few days later to her home the complainant asked him to transfer the money back into her account. His response was to show her a cut down double barrelled shot gun and two bullets. Later he put the shot gun against the complainant’s temple and said “bang, bang”. He also told her that she would be like “those people in Tauranga who were blown away and only their torsos were left”. Later, however, the appellant allowed the complainant to transfer the $4000 back into her bank account. These events gave rise to count 6 (unlawful possession of a firearm), count 7 (unlawful possession of ammunition), and count 8 (threatening to kill).
[8] Two days later the appellant denied the complainant and her son entry to their home. When he eventually let them inside the appellant began taunting her by telling her that she was “dead”, that she “knew too much”, and that because of what she had done he “needed to put a bullet in her head”. Then he demanded that she transfer the $4000 back into his account and when she did not oblige he began brandishing a metal bar. He told the complainant he was going to get her son and began walking down the hallway towards the child’s room. The complainant then agreed to transfer the money and the appellant held the metal bar behind her head as she knelt down at the computer. Then he grabbed her left ear and pulled out her earring, causing the ear to bleed. After transferring the money back into his account, the complainant and her son fled the property and went to the police. Count 9 (threatening to kill), count 10 (dishonestly obtaining a pecuniary advantage), count 11 (threatening to kill), and count 12 (male assaults female) resulted.
[9] Count 13 is a representative count relating to other threats to kill or to use serious violence against the complainant that were made regularly throughout the relationship. Effectively the appellant controlled the complainant and directed her in every day matters such as the rooms she was allowed to go into at certain times, whether she was allowed to sleep in her own bed, and whether she was allowed to enter or leave the house.
[10] Finally, count 14 (aggravated injury) relates to the offending against the police officer. On 6 July 2009 two detectives responded to a report that a man in a motor vehicle was behaving suspiciously. After the appellant was located, the red and blue flashing lights were activated on the unmarked patrol car and the appellant’s vehicle was stopped.
[11] One of the detectives, the second complainant, approached the vehicle and identified himself. The appellant was unco-operative and eventually the detective asked him for his driver’s licence. When the appellant handed the detective a black wallet and the detective began to open it the detective observed the appellant reaching for the car keys which were still in the ignition. Despite the detective’s direction not to touch the car keys the appellant started the vehicle and accelerated forward. The detective, who was leaning into the vehicle, was trapped partly inside the vehicle. About 50 metres on the appellant’s vehicle crashed into a tree and the detective suffered a cut to his head, seven broken ribs, and extensive grazing.
[12] Following the collision the appellant ran from the vehicle and was pursued by the other detective. The appellant became belligerent, abusive and threatening. It was several hours before he surrendered. Later he told the detective that he had been trying to “run over the cop’s head”.

The appellant

[13] The appellant declined to be interviewed by the probation officer. However, the sentencing Judge was provided with an earlier pre-sentence report (2005) together with supplementary information. This included letters and some Corrections notes relating to a psychological referral in 2009.
[14] At the time of sentencing the appellant was 37 years of age. He has previous convictions for violence.
[15] In 2006, the appellant was sentenced to four years imprisonment for injuring with intent to cause grievous bodily harm and threatening to kill. The victim, a former partner of the appellant, suffered serious injury. Following that offending the appellant was released from prison on 22 October 2008, which was only a few months before the current offending began.
[16] Earlier convictions for violence include two convictions for injuring with intent to cause grievous bodily harm in 2001. Those convictions attracted a sentence of 18 months imprisonment. Further back in the appellant’s offending history are convictions for male assaults female (5), common assault (2), threatening to kill (2) and resisting police.

Sentencing in the District Court

[17] Judge Wolff approached the offending against the first complainant on a global basis. Starting at six years imprisonment he applied an uplift of one year to reflect the appellant’s previous offending and other aggravating factors. Then he allowed a discount of nine months (about 10 per cent) to reflect the appellant’s guilty plea which had been entered 10 days before trial. The Judge then rounded down the overall sentence for the offending against the first complainant to six years imprisonment.
[18] Following that the Judge considered whether there should be a minimum period of imprisonment in relation to the offending against the first complainant. He concluded:

[6] ... from what I have heard, ...it is appropriate in this case for the protection of the community and for sending a clear message that a minimum non-parole period of two thirds should be imposed.”

That translated into a minimum period of imprisonment of four years.

[19] Turning to the incident involving the detective, Judge Wolff concluded that it was “sufficiently discrete and sufficiently different” to attract a cumulative sentence. He noted that the appellant knew that the victim was a police officer, the vehicle had been used as a weapon, and the appellant had been boastful about the event. The Judge said that if he had been sentencing for that offending alone, the end sentence would have been five and a half years imprisonment.
[20] However, applying the totality principle Judge Wolff concluded that the overall sentence that would result would be too high. He therefore reduced the cumulative sentence for the offending against the detective to three years imprisonment which resulted in an overall sentence of nine years imprisonment. A separate minimum non parole period of two years (two thirds) was imposed in relation to the offending against the detective.

Did the cumulative sentences breach the totality principle?

[21] Mr Barnsdale argued that the offending against the first complainant and the detective were sufficiently connected to justify a concurrent, rather than a cumulative, sentence. He noted that before trial the Crown had argued against severance on the basis that the offending against the police officer was a continuation of the offending against the first complainant and that the Court had refused severance essentially on that basis.
[22] We reject the proposition that the Judge erred by imposing a cumulative sentence for the offending against the detective. His hands were not tied by the pre-trial arguments and rulings relating to severance. The cumulative sentence was in accord with s 83 of the Sentencing Act 2002 and was entirely justified by the circumstances. To the extent that count 14 related to the injury of a police officer with intent to avoid arrest or facilitate flight it was clearly different in kind to the offending against the first complainant.
[23] The second component of Mr Barnsdale’s argument was that the total sentence of nine years imprisonment offended against the totality principle. Again we disagree. As Judge Wolff observed, the offending against the first complainant involved extreme psychological abuse, physical violence, and the stripping of her material possessions. It extended over a prolonged period. Of itself the offending against the first complainant was extremely serious.
[24] Added to that offending was the equally serious offending against the detective. This offending was committed by the appellant with full knowledge that the victim was a police officer and the appellant displayed absolutely no remorse for his actions. Quite the opposite. Finally, there was the appellant’s appalling history of serious violence coupled with the fact that he had only recently been released from prison for similar offending.
[25] We are satisfied that the total sentence of nine years imprisonment did not offend the totality principle. The first ground of appeal fails.

Was there sufficient credit for “youthful disadvantages”?

[26] Mr Barnsdale noted that the appellant did not receive any discount reflecting his difficult background and efforts that he had made to “unravel the confusion of his childhood and adulthood”. He claimed that this had given rise to a miscarriage of justice and a sentence that was manifestly excessive.
[27] While it is clear that the appellant had a difficult background, we do not accept that the Judge erred by failing to apply a discrete discount to reflect that factor. There is no evidence of any direct link (or indeed any indirect link) between the appellant’s background and this offending. Nor is there any suggestion that the appellant was suffering from some form of mental disorder or other illness that should have been taken into account as a mitigating factor. To the contrary, as Judge Wolff put it, he was “somewhat boastful” about his exploits and said that he had been trying to run over the detective’s head. Moreover, even though he had declined to co-operate with the probation officer, every effort was made to ensure that the sentencing Judge had all the information that could be reasonably obtained.
[28] There is no merit in this ground. It also fails.

Was the minimum period of imprisonment manifestly excessive?

[29] Mr Barnsdale claimed that the Judge had not given any reasons for the imposition of the minimum period of imprisonment. He also claimed that in any event a period of two thirds was too long and that if there was to be a minimum period of imprisonment it should not have been more than half the sentence.
[30] Contrary to Mr Barnsdale’s submissions, it is clear from the sentencing remarks that the Judge in fact gave two reasons for the imposition of a minimum period of imprisonment: first, the need to protect the community; secondly, the necessity to send a clear message to the community. Those reasons reflect the purposes in s 86(2)(c) and (d) of the Sentencing Act and we are satisfied that the imposition of a minimum period of two thirds was within the discretion of the sentencing Judge.
[31] This ground also fails.

Result

[32] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Undersen DC Hamilton CRI-2009-019-8115, 9 July 2010.