Story v R [2012] NZCA 98 (16 March 2012)

Last Updated: 22 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/2011 [2012] NZCA 98

BETWEEN CHRISTOPHER BARRIE STORY Appellant

AND THE QUEEN Respondent

Hearing: 22 February 2012

Court: Randerson, Potter and Simon France JJ

Counsel: K H Cook for Appellant K Raftery for Respondent

Judgment: 16 March 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

A The sentence appeal is allowed in part.

2. The appeal against the sentence of six years nine months imprisonment, and the minimum period of imprisonment of three years four months is dismissed.

100. The current reparation orders are quashed, and are replaced by an order of $500 in favour of each victim. Payments are to be made at the rate of $10 per week to each victim, commencing one calendar month after Mr Story’s release from imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Story appeals a sentence of six years nine months imprisonment imposed on two charges of causing grievous bodily harm with intent to do so. At the same time Judge Erber imposed a minimum non parole term of three years four months, and reparation of $5,000 to be paid to each of the two victims.[1]
[2] All facets of the sentence, other than a starting point of nine years for the total offending, are challenged.

Facts

[3] The victims, Mr and Mrs Douglas, are a married couple who live in Christchurch. One evening a neighbouring house was holding a party at which Mr Story was in attendance. The Douglas household awoke because of the noise. They heard someone laughing outside their property whilst discussing the theft of a pot plant. They went out to investigate.
[4] Mr Story was the thief. Mr Douglas called out to him about the pot plant and Mr Story responded by running at him with a knife. Mr Douglas avoided the blow, and he, his wife and their son who was with them ran back to their enclosed property, shutting the gate. However, Mr Story pursued them. He barged the gate, forcing it open.
[5] Mr Story first caught up with Mrs Douglas. He attacked her savagely, stabbing her no less than six times, with two being to the back. Mr Douglas rushed over to help and placed Mr Story in a headlock. He was stabbed in the shoulder, the knife going all the way through his body. Eventually the son hit Mr Story with an object, which caused Mr Story to desist.
[6] The consequences have been severe. Immediately, Mrs Douglas suffered a punctured liver, and severe muscle damage in the area of her chest and shoulder. Longer term, she is still unable to lift her arm above shoulder height. Mr Douglas required surgery but has recovered.
[7] The couple found themselves unable to remain in their home because of the psychological impact of the attack. The address to which they relocated was then substantially damaged in the earthquake. They were forced to move again. Everything is much harder, work is more distant and involves more travel, and the horror of the attack remains with them.
[8] Against that background, we address each aspect of the appeal in turn.
[9] Issues on appeal

(a) Mitigation

[10] From a starting point of nine years, Judge Erber allowed a discount of 20 per cent to reflect an early guilty plea but one made in the face of compelling evidence. The Judge then recognised there was genuine remorse and that taken with other factors, the total discount should be 25 per cent.
[11] On appeal Mr Cook submits more was required. He focuses on the early plea, Mr Story’s limited intellectual capacities, his “mental health” issues, and his lack of previous convictions. These personal factors were taken into account when the Judge determined the length of the minimum period of imprisonment, but not when fixing the underlying sentence.
[12] Concerning the value of the guilty plea, we consider the Judge’s approach was correct. Mr Cook suggested that a larger discount was deserved because there was an available “intent” defence as regards Mr Douglas’ injury. However, given the overall circumstances we consider that to be more imagined than real. Identity could not be in issue, and the reality is that conviction on all charges was inevitable.
[13] There is no doubt that the other factors on which Mr Cook relies to advance the appeal are present. It appears that Mr Story is of a slower intellect and has suffered for some time from depression and low self-esteem. He was unemployed for several months prior to the offending and seems during that time to have been largely unengaged with anything constructive or positive. He is, as Mr Cook submits, a first offender, aged 20 years at the time of offending.
[14] We accept that the Judge did not factor all of these matters into his consideration when assessing mitigation, and we accept he should have. However, in our view, an overall discount greater than 25 per cent, while possible, was far from mandated or expected. There is no obvious link between the offending and any of the matters raised. It is possible another judge may have given 30 per cent, but it was not wrong to settle on a lower figure. Most importantly, in our view the final sentence of six years nine months imprisonment is not excessive, let alone manifestly so.

(b) Minimum term of imprisonment

[15] Likewise, we consider an appeal against the minimum term of imprisonment should not be allowed. This was chilling offending in that it was not only unprovoked, but positively pursued by Mr Story. The victims were fleeing, having had the temerity to question Mr Story as to why he was stealing from them. The matter could have ended there but instead Mr Story pursued them, and then set about a defenceless woman. Nor is it to be overlooked that Mr Story already had the knife with him at the time.
[16] In terms of the length of the minimum term of imprisonment, the Judge had regard to all the personal factors previously discussed. The final outcome of a minimum period of imprisonment of three years and four months could be seen as the very minimum term of imprisonment necessary to respond to the overall circumstances of the offence and the offender.
[17] Counsel relied in his submission on the decision of this Court in Kauwhata v R in which a minimum term of imprisonment was quashed.[2] Before detailing the facts, and why this case is different, we observe there is nothing about that decision to suggest it is of particular precedential value. It is just a decision, like this one, on its own facts.
[18] Kauwhata involved an incident of domestic violence. Mr Kauwhata and his wife had very recently separated. Despite a protection order, contact was voluntarily maintained and Mrs Kauwhata encouraged her husband to undertake alcohol counselling. On New Year’s day Mrs Kauwhata visited him to borrow something, unaware he had been drinking. For unknown reasons Mr Kauwhata attacked her with a knife, stabbing her several times. Fortunately the physical injuries were comparatively minor, with Mrs Kauwhata requiring stitches to three cuts, and suffering some bruising.
[19] It is difficult to see why this case is advanced as a useful precedent for the present offending. Other than the use of a knife the circumstances are wholly different, and the reasons which led the Kauwhata Court to quash a minimum term of imprisonment have little impact here. The offending in that case lay somewhere between the lower Taueki bands and the physical injuries caused bear no relationship to those suffered by Mr and Mrs Douglas.[3] Mr Kauwhata continued to have his wife’s support. The cases are simply not comparable.
[20] We see no issue with the fact that a minimum term of imprisonment has been imposed on Mr Story, nor with its length.

(c) Reparation

[21] Mr Story made an unquantified offer of reparation. No report was requested, but the Judge accepted the offer and ordered payment of $5,000 to each victim. Before us the offer to pay is maintained, but a reduction in quantum is sought. A total figure of $5,000 is suggested.
[22] Reparation can be a difficult exercise in these cases. On the one hand s 12 of the Sentencing Act 2002 is quite directive that orders should be made where it is lawfully possible to do so. In this case that imperative is reinforced by the undoubted emotional harm suffered by the victims, and by Mr Story’s offer to pay. On the other hand, the realities of Mr Story’s situation cannot be ignored. He had been unemployed prior to incarceration, he will realistically spend at least three and a half years in jail, and there is nothing at this point to suggest his prospects will be better on release.
[23] We are satisfied that a total order of $10,000 is too high given these factors. The sentencing Judge did not have the assistance of a reparation report. While such a report might only have confirmed the obvious, we consider one should have been obtained before orders of this size were made. At the least the report may have served to focus everyone on what was achievable. We note, for example, that contrary to s 36 of the Sentencing Act, there is no direction as to how the money is to be paid. Focussing on that would have highlighted that the amounts were unrealistic.
[24] Whilst we have doubts that any order was appropriate in this case, given Mr Story’s continued desire to make some payment, we consider the best solution is to reduce the sum, and make it payable within a relatively confined time. This reduction does not seek to diminish the suffering which the victims have experienced; the balance of the judgment has already made plain our views on the offending and its impact. Rather, we are concerned to set the reparation at a much more realistic level which will provide some small redress to the victims while at the same time seeking to avoid ongoing frustration that might arise with protracted payments and any level of default.
[25] Accordingly, the current reparation orders are quashed, and are replaced by an order of $500 in favour of each victim. Payments are to be made at the rate of $10 per week to each victim, commencing one calendar month after Mr Story’s release from imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Story DC Rangiora CRI-2011-009-2157, 10 June 2011.
[2] Kauwhata v R [2010] NZCA 451.
[3] R v Taueki [2005] 3 NZLR 372 (CA).