Hape v R [2015] NZCA 187 (21 May 2015)

Last Updated: 3 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA741/2014 [2015] NZCA 187
BETWEEN	TYRAN JARROD HAPE Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	N M Dutch for Appellant B F Fenton for Respondent
Judgment:	21 May 2015 at 11:30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant was convicted after a jury trial in the District Court before Judge Harding on one count of causing grievous bodily harm with intent to cause grievous bodily harm.^[1] He was sentenced to four years and three months imprisonment and now appeals against sentence.^[2]
[2] The appeal is advanced on the grounds that:

• (a) The starting point of five and a half years imprisonment was too high.
• (b) Insufficient allowance was made for the appellant’s youth and previous good character.

The facts

[3] Judge Harding described the facts in these terms:^[3]

[1] ... What happened, happened on New Year’s Eve 2012. You had been drinking. You were at the Mount. The person who you ended up hitting approached you and attempted to speak with you. You took exception, punched him in the face, knocking him backwards to the ground. The back of his head hit the road as he fell and he became unconscious. While he was on the ground, you then kicked him full force in the face. Your kick was described as how Dan Carter would kick a rugby ball.

[2] The complainant was taken to hospital unconscious and injured. He suffered a fractured cheek, a fractured eye socket, a broken nose, bruising to the front and rear of his brain and has had to undergo reconstructive surgery once and is likely to have to undergo it again.

[3] You acknowledge kicking the complainant on the ground.

[4] The Judge then summarised the effects of the attack:

[4] The victim impact statement makes it clear that there have been significant and ongoing effects from this. He was housebound for six weeks. He has sleepless nights. He is unable to participate in sport any longer. He is not allowed to play any contact sport for some time for the risks. He had to leave his job because he could not do what he was required to do. He is very wary of his own safety and he regards his life as having been significantly affected for a whole year.

[5] The Judge took into account the following aggravating factors: the level of violence employed; there was a kick to the head; this occurred while the victim was defenceless on the ground and in a vulnerable position; and the significant harm done. He regarded the case as falling within the top of band 1 or the bottom of band 2 as described in R v Taueki.^[4] The Judge considered the violence to be arguably extreme; the harm was substantial; and although he noted that this was alcohol-fuelled violence from the appellant’s perspective, he saw a need for general deterrence. He adopted a starting point of five and a half years.
[6] The Judge noted that the appellant was 17 years of age at the time of the offending and had no previous convictions. He summarised the probation report in these terms:

[9] The probation report refers to you as young and relatively immature. You explain to the probation officer, “I told him to go, he wouldn’t go away so I smashed him”. It refers to your youth, your immaturity and your propensity for violence. It also notes the significant physical and psychological damage to the victim and disturbingly suggests you show little insight into your behaviour or remorse for your actions. On the other hand, people who know you say that you are a good father. People for whom you work say you are a good worker.

[7] The Judge allowed a discount of nine months for the appellant’s youth and six months for previous good character. The total discount of 15 months represented approximately 22 per cent of the sentence resulting in a final term of four years and three months imprisonment.

The starting point

[8] Mr Dutch submitted on the appellant’s behalf that the starting point was too high. The Judge had double-counted aggravating factors such as the level of violence and the level of injuries; this was to take into account factors that went beyond the elements necessary to justify the levels of seriousness inherent in the charge; and the facts did not support the Judge’s assessment that extreme violence was arguably involved or that the victim was vulnerable. Overall, Mr Dutch submitted that the offending fell within the description of a street attack of an impulsive nature: no weapons were involved and there was no prolonged attack.
[9] Ms Fenton accepted for the Crown that the starting point was high but submitted it was within the available range. While it may have been going too far to characterise the attack as involving extreme violence, the victim had sustained serious injuries; there was an attack to the head and the victim could be viewed as having been vulnerable when kicked while on the ground. She agreed the offending could be regarded as a street attack but the aggravating factors in this particular case suggested that it should fall at least in the upper end of band 1 (three to six years).
[10] We view the level of culpability for this offending as falling at the upper end of band 1 described in R v Taueki. Although both counsel agree this offending could be categorised as a street attack we consider the Judge was entitled to view it in a serious light. Not only did it involve an attack to the victim’s head but the appellant then subjected the victim to a powerful kick in the face when he was undoubtedly in a vulnerable position on the ground. The injuries sustained to the victim were serious, involving surgery and ongoing effects. We do not view the Judge’s remarks as involving double counting. He assessed the factors going to culpability and placed what occurred in the available range. In cases at the cusp of band 1 and band 2 it does not matter which band is selected because the range of available sentences overlap. In our view, the starting point of five and a half years adopted by the Judge was available to him.

Discount for youth and previous good character

[11] Mr Dutch did not strongly press this element of the argument but emphasised that the appellant was only 17 years old at the time of the offending and that he came before the court as a first offender. He also reminded us of the observations made by this Court in Churchward v R about adolescent brain development. Similar submissions were made in the District Court.^[5]
[12] Ms Fenton submitted that the combined discount was about 22 per cent (14 per cent for youth and 8 per cent for previous good character). We accept her submission that there is no basis to interfere with the Judge’s assessment of the appropriate discount.

Result

[13] We are satisfied that the sentence, while stern, was not manifestly excessive. The appeal against sentence is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 188(1).

^[2] R v Hape DC Tauranga CRI-2013-070-235.

^[3] R v Hape, above n 2.

^[4] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34]– [41].

^[5] Churchward v R [2011] NZCA 531 at [76]–[84].