Ryan-Thoms v R [2013] NZCA 518 (24 October 2013)

Last Updated: 30 October 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA499/2013 [2013] NZCA 518
BETWEEN	DANNY SHANE RYAN-THOMS Appellant
AND	THE QUEEN Respondent

Hearing:	1 October 2013
Court:	O’Regan P, Panckhurst and MacKenzie JJ
Counsel:	F E Guy-Kidd for Appellant M A J Elliott and M A V Raj for Respondent
Judgment:	24 October 2013 at 2 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

2. The appeal against a sentence of four and a half years imprisonment is dismissed.

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REASONS OF THE COURT

(Given by Panckhurst J)

The issue

[1] The appellant challenges a sentence of four and a half years imprisonment imposed in relation to offences of wounding with intent to cause grievous bodily harm and wounding with intent to injure.^[1] The two charges arose from a single attack, but committed against different complainants. The essential basis of the appeal is that the Judge adopted excessive starting points in relation to the separate offences and that this skewed the end sentence.
[2] The notice of appeal was filed out of time as a result of confusion with reference to a grant of legal aid to counsel. Mr Elliott indicated at the outset that no prejudice had resulted, and that the extension was not opposed. Accordingly we grant the application for an extension of time to appeal.

The offending

[3] We shall refer to the complainants by their christian names, Juanita and Jaymie. At about 2.00 am on 22 April 2012 the complainants were on the roadside at an intersection in Bluff. The appellant stopped his car adjacent to the complainants and offered them a lift. However, an argument began between the appellant’s partner, who was a passenger in the car, and the complainants.
[4] The appellant got out of his vehicle. He approached Jaymie and punched her several times in the head. Her companion, Juanita intervened. She was punched three times in the face. At this point Jaymie stepped in and was struck twice causing her to fall to the ground. The appellant then kicked her in the face before she could get up. At this point members of the public arrived and intervened.
[5] Juanita sustained a broken eye socket. She required reconstructive surgery to aid her recuperation. Jaymie received even more serious injuries. Her jaw was broken in three places. She too required surgery, and three plates were screwed into place to stabilise the fractures. She required follow-up surgery to remove the plates.
[6] When interviewed the appellant stated that one of the complainants had thrown a bottle at his car and he acted to defend his property. He told the police that he was attacked and he pushed the complainants, causing them to fall which in turn caused their facial injuries. The appellant denied punching and kicking the complainants. However, at trial he pleaded guilty to the charges.

Personal circumstances

[7] The appellant is aged 27 years. He is a fisherman by occupation. He has an extensive offending history. In the years 2003–2006 he incurred convictions for burglary, theft, unlawful interference with motor vehicles and also for various lesser offences. Since 2006 he has mainly committed driving offences and breaches of Court imposed obligations, save for a theft conviction in 2008. These charges were the first the appellant had faced for violent offending.
[8] The pre-sentence report noted that the appellant accepted the factual background and had not sought to minimise the seriousness of his actions. He said he became angry when a bottle was thrown at his vehicle and that he had a problem in controlling anger at times. The report writer assessed Mr Ryan-Thoms as posing a moderately high risk in relation to causing harm to others. A custodial sentence was recommended. The appellant expressed remorse and offered savings of $3,000 as reparation for emotional harm. He also indicated a willingness to attend a restorative justice meeting so that he could apologise in person.
[9] The appellant has a good work record in the fishing industry. He and his partner have four children in their care and she expressed concern as to her ability to provide for the family in the appellant’s absence.

The sentencing

[10] The Judge adopted a starting point of five years in relation to the lead offence, wounding with intent to cause grievous bodily harm. He added three years imprisonment with reference to the further charge to arrive at a total starting point of eight years imprisonment. However, this term was reduced by 18 months in recognition of the need for a totality approach.
[11] Judge Phillips then allowed 15 percent reductions in recognition of the guilty pleas and the offer of reparation. The term was then rounded down by some weeks to arrive at the end sentence of four and a half years imprisonment. This term was imposed in relation to the lead offence, with a two year concurrent term in relation to the lesser offence. The Judge ordered that Juanita be paid $2,000 and Jaymie $1,000.

Basis of the appeal

[12] Counsel advanced three main points:

• (a) that the starting point adopted for each of the offences was too high,
• (b) that there was no allowance made for remorse, and
• (c) that an overnight curfew to which the appellant was subject for 11 months was not taken into account.

[13] With reference to the charge of wounding with intent to cause grievous bodily harm (which carries a maximum of 14 years imprisonment) the Judge identified extreme violence, attacking the head, serious injury and that the complainant was vulnerable as the aggravating features.^[2] By reference to R v Taueki^[3] the Judge considered that because there were more than three aggravating features this crime fell within band 2 and therefore warranted a starting point of five years, as was adopted.
[14] Mrs Guy-Kidd, however, contested this analysis. She rightly pointed out that by definition wounding with intent to cause grievous bodily harm involves serious violence and that, having regard to the spectrum of wounding cases, this was not a case of extreme violence. Nor did she accept that the complainant, Juanita, was particularly vulnerable.

[15] The argument continued that if the aggravating features were properly assessed, including as to their intensity, this case fell within band 1 of Taueki, being a:^[4]

Street attack: where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated.

The band 1 range is three to six years imprisonment. In this case counsel submitted that a starting point in the middle of the band, four and a half years imprisonment, was as much as was justified.

[16] A similar submission was advanced in relation to the crime of wounding with intent to injure. The guideline case is R v Nuku.^[5] By reference to that case the Judge identified three aggravating features: the level of violence, a serious injury, and the vulnerability of the victim. He also described this as “separate offending”.^[6] Hence band 2 of Nuku was identified as appropriate and a starting point of three years imprisonment was adopted. Mrs Guy-Kidd argued that the Judge’s analysis in relation to this charge was similarly deficient. In essence, she contended that there was a failure to place the subject offending within the spectrum of cases comprising wounding with intent to injure. Aggravating features were counted without a weighing of their true seriousness and by reference to the fact that cases of this nature are by definition serious.
[17] Finally, counsel submitted that the Judge had not recognised remorse when its existence was self-evident from the reading of the pre-sentence report. Counsel also explained that the appellant complied with a curfew from 9.00 pm to 7.00 am daily for 11 months until he was sentenced in May 2013. This aspect was not raised in the District Court, yet it was a factor worthy of recognition.

Discussion

[18] These were serious crimes. Judge Phillips characterised this as “gratuitous street violence” of a kind that is all too commonplace.^[7] The victim impact statements from the complainants confirmed that the consequences they had suffered were serious. Juanita described the brutal force of the punches to her head and of the kick when she was on the ground. She lost consciousness. The injury to her eye socket prevented her using an airfare to, and accommodation in, Australia causing financial loss. Jaymie, on account of her fractured jaw, lost her employment. Ongoing medical treatment was required including facial injections to deal with pain.
[19] We accept that there is weight in the submission made by Mrs Guy-Kidd concerning the two starting points adopted and totalling eight years imprisonment. The judgments in Taueki and Nuku emphasise the need to stand back and assess the intrinsic seriousness of aggravating features, not just to count them in a rote manner. But in this case the adjustment for totality reduced the effective starting point to six and a half years imprisonment. We are not persuaded that this was excessive.
[20] No criticism was or could be made in relation to the reductions for the payment of reparation and the entry of guilty pleas. We consider that the 15 percent adjustment for the former included recognition for remorse. As Mr Elliot pointed out, the night-time curfew to which the appellant was initially subject was subsequently relaxed to accommodate the appellant’s employment as a fisherman. Even accepting that some allowance could have been made for this factor the 15 percent adjustment made for the guilty pleas was generous given that the appellant pleaded guilty on the morning of trial.

Conclusion

[21] We consider this was a stern sentence, but clearly the offending was brutal. In the result we are not persuaded that the sentence was manifestly excessive. For these reasons the appeal is dismissed.

Solicitors:
AMS Legal, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Ryan DC Invercargill CRI-2012-025-1120, 17 May 2013.

^[2] At [10].

^[3] R v Taueki [2005] 3 NZLR 372 (CA).

^[4] At [37](a).

^[5] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

^[6] At [13].

^[7] At [7].