Daniels v R [2015] NZCA 295 (9 July 2015)

Last Updated: 21 July 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA713/2014 [2015] NZCA 295
BETWEEN	BEN PENE DANIELS Appellant
AND	THE QUEEN Respondent
CA731/2014
BETWEEN	VAN JASON DANIELS Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	C D Bean for Ben Daniels G A Walsh for Van Daniels K J Cooper for Respondent
Judgment:	9 July 2015 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

[1] Van Daniels (Van) and his brother Ben Daniels (Ben) were found guilty by a jury on charges of injuring with intent to injure and assault with a weapon. In addition, the jury found Van guilty on a charge of aggravated burglary.
[2] On 21 November 2014 Judge Ruth sentenced Van to four years’ imprisonment on the charge of aggravated burglary, which he treated as the lead charge, together with concurrent sentences on the remaining two charges.^[1] The Judge sentenced Ben to three years’ imprisonment on the charge of injuring with intent to injure, and imposed a concurrent sentence of six months’ imprisonment on the charge of assault with a weapon.
[3] Both brothers appeal against the sentences the Judge imposed. They contend the Judge erred in principle in constructing the sentences, and that the end sentences were manifestly excessive as a result.

Background

[4] The Judge sentenced the appellants on the basis of both the evidence given at trial and material contained in a summary of facts that the Crown apparently filed before sentencing. It is unclear why the latter document was taken into account, because it contained material that was inconsistent in some respects with the jury’s verdicts. As the Judge who had presided over the trial, Judge Ruth could also be expected to be familiar with the facts disclosed by the evidence given at trial. We do not consider, however, that the inconsistencies contained in the summary of facts affected the sentences that the Judge ultimately imposed.
[5] The charges were laid following an incident that occurred on the morning of 7 April 2013. On that date the two appellants travelled to Cambridge in a vehicle driven by one of their associates, a Mr Hendry.^[2] There they went to the home address of the victim, who was known to Mr Hendry but not to the two appellants.
[6] The victim came to the gate of his property when he saw Mr Hendry’s vehicle arrive. The appellants and Mr Hendry got out of the vehicle and there was then a verbal altercation that ended with the victim retreating into his house. The appellants and Mr Hendry followed him inside. Van was the last to enter the house. By this stage Van was carrying a claw hammer. The victim’s partner was standing by the door holding the couple’s two week old child. The men ignored her demands that they leave.
[7] The Crown alleged that the appellants pursued the victim into the main bedroom of the house, where they both assaulted him. Van also struck the victim’s dog with the claw hammer and rendered it unconscious during this part of the incident. The victim eventually managed to escape from the bedroom and fled from the house.
[8] The appellants gave chase, and caught up with the victim when he tried to jump a neighbouring fence. They pulled him from the fence, causing injury to his chest. Whilst on the ground he was kicked and punched in the head by Ben, and Van struck him multiple times on the body and shoulder area with the hammer. The impact from the hammer left at least two distinctive bruises on the victim’s body.
[9] As a result of the incident the victim suffered an injury to his shoulder and leg, as well as a broken front tooth. He also received a significant injury to his head. This was initially thought to be a fractured skull, although that ultimately proved not to be the case. It took some months, however, for the victim to recover enough from his injuries to return to work.

The jury’s verdicts

[10] Both appellants faced charges of aggravated burglary flowing from the fact that Van was armed with a hammer when he and the other two men entered the victim’s house. The jury found Van guilty on this charge, but acquitted his brother. The jury’s verdict is obviously explicable on the basis that upon entering the house Ben was unaware that his brother was carrying the hammer.
[11] In respect of the incident that occurred in the bedroom, the jury acquitted both men of charges of injuring the victim with intent to injure.
[12] However, the later incident outside the house led to both appellants being charged and found guilty of assault with a weapon and injuring the victim with intent to injure him. In this context the Crown had alleged that Ben was a party to the assaults that his brother carried out using the hammer as a weapon, and Van was a party to the acts of Ben when he punched and kicked the victim in the head.

The Judge’s findings of fact

[13] The Judge was required to make several factual findings in respect of issues that potentially affected the sentences to be imposed.
[14] The first of these related to the issue of when Van came into possession of the hammer that he subsequently used to strike the victim on the body. The Crown alleged at trial that Van had taken the hammer to the property, and had brandished it at the victim when he first encountered him at the entrance to the property. Van’s evidence at trial on this point was that he had picked the hammer up after the victim had thrown it at him shortly after the three men arrived at the address. The Judge was satisfied that this did not occur, but was not satisfied that the evidence established that Van was carrying the hammer when he got out of the vehicle. He concluded it was likely that Van had come into possession of the hammer shortly before entering the house.
[15] As noted, the jury had acquitted both men on the injuring with intent to injure charge in relation to the incident in the bedroom, so the Judge observed that he would not take the victim’s evidence about that aspect of the incident into account for sentencing purposes.
[16] The Judge considered he was unable to reach any firm conclusion regarding the circumstances in which the dog came to be rendered unconscious. Although he was sceptical about Van’s explanation that he had struck the dog when it attacked him in the bedroom, the Judge did not consider that this issue affected the ultimate outcome of the sentencing process.
[17] The Judge rejected a defence submission that when the victim left the house he had been chasing Ben. He was satisfied that Ben and his brother chased the victim because they wanted to assault him, and that both appellants knew that the hammer was likely to be used.

The structure of the sentence

[18] The Judge considered that the assault on the victim that occurred after he had been pulled down from the fence was a “sustained and prolonged and determined attack” by both appellants.^[3]
[19] After considering the sentencing principles contained in Nuku v R^[4] and R v Taueki,^[5] the Judge took a starting point for Van of two years six months’ imprisonment on the charge of aggravated burglary. He applied an uplift of 18 months to reflect the charge of assault with a weapon, and a further uplift of six months in respect of the charge of injuring with intent to injure. The Judge took the view that the jury had found Van guilty on the latter charge on the basis that he was a party to the injuries that his brother had inflicted on the victim after the victim had tried to escape from the property. This took the starting point to four years and six months.
[20] The Judge then reduced that starting point by six months to reflect Van’s previous good character and, at 19 years of age, his relative youth. This produced an end sentence of four years’ imprisonment, which he imposed on the charge of aggravated burglary. He imposed concurrent sentences of 18 months and six months respectively on the charges of assault with a weapon and injuring with intent to injure.
[21] In sentencing Ben, the Judge took a starting point of two years six months’ imprisonment on the lead charge of injuring with intent to injure. He then added a six month uplift to reflect the role that Ben played in the assault with a weapon by his brother. The Judge saw no basis to apply any discount. He therefore sentenced Ben to three years’ imprisonment on the lead charge and a concurrent sentence of six months’ imprisonment on the charge of assault with a weapon.

Grounds of appeal

[22] On Van’s behalf Mr Walsh accepts that a starting point of two years six months’ imprisonment was appropriate in respect of the charge of aggravated burglary, but contends that the Judge erred in applying uplifts of 18 months and six months respectively for the charges of assault with a weapon and injuring with intent to injure. Mr Walsh submits that uplifts of no more than nine months and three months respectively were justified on those charges.
[23] Mr Walsh also contends that the Judge should have applied a discount of at least twelve months to recognise Van’s youth, his previous good character and the fact that he was subject to restrictive bail conditions, including an evening curfew, for approximately 15 months without incident.
[24] Mr Bean advances a single ground of appeal on behalf of Ben. He submits that the Judge erred in applying an uplift on the charge that Ben was a party to the assault by his brother with the hammer. He contends that his client’s culpability in relation to this charge is already captured by the charge of injuring with intent to injure.

The appeal by Van

Starting point

[25] All of the charges arose out of a single and continuous incident. As a result, concurrent sentences were clearly appropriate.^[6] This meant that the Judge was required to impose a sentence on the most serious charge that was appropriate for the totality of the offending.^[7] For that reason it was not necessary for the Judge to go through the exercise of selecting appropriate starting points for each of the charges. Having selected the most serious charge, in this case that of aggravated burglary, the critical issue was the selection of a starting point that appropriately reflected Van’s overall culpability.
[26] Taking that approach, we consider the offending involved numerous aggravating features. The first was that Van was part of a group of men who burst uninvited into the victim’s home for the express purpose of assaulting him. This placed all of the occupants of the address at risk of physical harm, including the victim’s partner and very young child. Van was carrying the hammer as a weapon when he entered the house. After he and his brother had prevented the victim from escaping over a fence, he used that weapon to strike the victim about the shoulder and body. He did so in concert with his brother, who was kicking and punching the victim in the head. The attack resulted in the victim receiving significant injuries that took a considerable time to heal.
[27] Mr Walsh submitted that a starting point of four years six months was outside the available range even having regard to these factors. He relied for this submission on several judgments of this Court, in which lower starting points have been approved in relation to offending having some similarity to that in the present case.
[28] In Eldershaw v R the offender came across the victim, who was sitting in a nearby car.^[8] The offender became annoyed at the victim and punched him. The victim drove away with the offender clinging to the side of his vehicle. The victim returned to his home address, which was a short distance away. Upon arrival, the victim’s father told the offender to leave the address and not come back. The offender returned to the victim’s address later in the day accompanied by an associate. Both men were armed with baseball bats. The offender entered the victim’s house and hit the victim on the head with the baseball bat whilst his associate stood nearby. The blow caused a minor head wound. The sentencing Judge adopted a starting point and end sentence of two years eight months’ imprisonment on charges of aggravated burglary, assault with a weapon and common assault. This Court upheld that sentence.
[29] Next, Mr Walsh referred us to R v Shirley, in which the offender had gone to the victim’s address armed with a baseball bat.^[9] When the victim told the offender to leave and not come back, the offender threatened him verbally and with the baseball bat. The victim was able to take the baseball bat away from the offender, who then left the address. The offender returned to the victim’s address approximately two hours later, this time accompanied by his younger brother. The offender was carrying a large kitchen knife, and his brother was armed with a chair leg that had a screw protruding from it. The victim locked himself in his bedroom after the offender threatened to kill him. The offender’s brother then smashed several holes in the bedroom door. This Court upheld a starting point of three years six months’ imprisonment on charges of aggravated burglary, assault with a weapon and threatening to kill.
[30] In R v Patrick, the offender had gained entry to his former wife’s address by breaking a glass ranchslider door using a metal pipe.^[10] Inside the address he picked up a knife and wielded it, causing the occupants of the address to barricade themselves in one of the bedrooms. The offender then tried to gain entry to the bedroom by smashing his way through the door. The occupants were able to escape using another door, and alerted the police. This Court noted that the offending had been of relatively short duration, and that the offender had made no attempt to physically harm any of the occupants of the address. He had also allowed them to escape, and had not pursued them.^[11] The Court therefore held that a starting point of four years six months’ imprisonment on charges of aggravated burglary and possession of an offensive weapon was too high, and that a starting point of three and a half to four years’ imprisonment would have been appropriate.^[12]
[31] Mr Walsh also relied on the approach taken in R v Carter.^[13] In that case the offender went with her partner to the victim’s address, where the offender’s partner confronted the victim about a missing cellphone. The offender and her partner then left the address after a fight ensued, but returned the next day. The offender’s partner got out of the vehicle carrying a sledgehammer, whilst the offender remained in the vehicle outside. The offender’s partner then smashed the front door of the address with the sledgehammer and attacked the two occupants using the sledgehammer as a weapon. This caused one of the occupants to suffer two broken ribs, whilst the other suffered a cut above the eye and bruising to his back and shoulders. Both victims required hospital treatment for their injuries.
[32] When another person who was outside the address ran onto the street, the offender drove her vehicle directly at him. This knocked the victim to the ground, causing him to suffer grazing to his hand and knee.
[33] The Judge who sentenced both the offender and her partner in the District Court imposed a sentence of three years’ imprisonment in respect of the offender and seven years’ imprisonment in respect of her partner. This Court upheld the starting point in respect of the offender’s partner.^[14] After taking into account mitigating circumstances, the District Court Judge ultimately sentenced the offender to 12 months home detention and 250 hours community work. Whilst the offender was serving these sentences, she pleaded guilty to a charge of blackmail. The circumstances giving rise to this charge were unrelated to those that led to the earlier charges.
[34] Mallon J was then required to sentence the offender on the blackmail charge and re-sentence her on the charges in respect of which she had previously been serving the sentence of home detention. In doing so, Mallon J approved the starting point of three years’ imprisonment adopted in the District Court.^[15]
[35] We consider that the offending in the present case was more serious than that in Eldershaw, Shirley and Patrick. Van’s offending has the added feature that it occurred after he and his brother pursued the victim when he attempted to escape. It also involved a concerted physical attack by two persons, with Van using a hammer as a weapon. The attack resulted in significant physical injuries to the victim, an outcome that is not a feature in these three cases.
[36] Although the offending in Carter has some similarities with that in the present case, it did not involve the concerted use of force by two assailants. We consider, however, that the starting points adopted in Carter are broadly in line with that adopted in relation to Van. The culpability of the offender’s partner in Carter was clearly more serious than that in the present case, whilst that of the offender was considerably less serious.
[37] We have therefore concluded that the combined aggravating features of Van’s offending justified a starting point of four years six months’ imprisonment.

Mitigating factors

[38] Van was 19 years of age at the time of the offending. This was his first appearance before the courts. In those circumstances Mr Walsh submitted that the Judge ought to have given him a discount of more than six months to reflect his youth and previous good character.
[39] The extent to which credit may be given for mitigating factors such as youth and previous good character is a matter very much within the discretion of the sentencing judge. This Court has also observed that youth alone may not warrant a substantial discount in cases involving violent offending.^[16] In the present case the Judge gave Van an allowance of approximately ten per cent to reflect these factors. He did so notwithstanding the fact that the offending can properly be described as serious. We are not prepared to say that the Judge erred in principle in failing to apply a greater discount. Nor can we say that it led to the imposition of a sentence that was manifestly excessive.
[40] Mr Walsh also contends that the Judge erred by not providing Van with a discount to reflect the fact that he was required to adhere to stringent bail conditions for a period of approximately 15 months. These included a daily curfew between the hours of 7 pm and 7 am.
[41] This Court has held that night-time curfews do not provide such a restriction on freedom of movement that they demand recognition on sentencing.^[17] In the present case the issue is further complicated by the fact that Van was also subject to restrictive bail conditions on charges other than those that relate to the present appeal. For those reasons we see no justification in any further adjustment of the sentence to reflect this factor.

The appeal by Ben

[42] The sole ground of appeal advanced by Mr Bean on Ben’s behalf was that the Judge erred in principle when he applied an uplift of six months to reflect Ben’s conviction for being a party to his brother’s offending when Van assaulted the victim with the hammer. Mr Bean submitted that this resulted in an element of double counting, because the starting point that the Judge selected in respect of the charge of injuring with intent to injure already took into account the use of the hammer in the attack on the victim.
[43] During the hearing Mr Bean refined this submission. He contended that, putting Ben’s culpability in encouraging Van’s use of the hammer to one side, the charge of injuring with intent to injure did not warrant a starting point of more than two years’ imprisonment. An uplift of no more than six months was required to reflect the fact that Ben encouraged his brother to use the hammer to assault the victim. A starting point of three years’ imprisonment was therefore outside the available range to reflect the overall gravity of the offending.
[44] We do not accept this submission. Ben was found guilty of offending that had the same aggravating features as that of his brother, other than the carriage and use of the hammer as a weapon. He entered the house with two other men and then pursued the victim as he tried to escape. After he had assisted his brother to stop the victim from escaping, Ben was directly responsible for kicking and punching the victim in the head whilst he lay defenceless on the ground. We consider that offending of this type and duration easily warranted a starting point of two years six months’ imprisonment.
[45] The jury’s conclusion that Ben encouraged his brother to use the hammer to assault the victim also warranted discrete recognition. An uplift to reflect this factor therefore does not involve any element of double counting. We do not see how an uplift of six months can properly be regarded as being outside the available range.

Result

[46] The appeals against sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Daniels DC Hamilton CRI-2013-019-2395, 21 November 2014.

^[2] Mr Hendry faced charges at trial of aggravated burglary, injuring with intent to injure and threatening to kill, but was found not guilty on all charges.

^[3] R v Daniels, above n1, at [8].

^[4] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

^[5] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[6] Sentencing Act 2002, s 84(2).

^[7] Section 85(4).

^[8] Eldershaw v R [2013] NZCA 374.

^[9] R v Shirley [2009] NZCA 216.

^[10] R v Patrick [2008] NZCA 115.

^[11] At [24].

^[12] At [25].

^[13] R v Carter HC Palmerston North CRI 2009-054-2693, 21 October 2009.

^[14] R v Morgan [2009] NZCA 341.

^[15] R v Carter above n 13, at [22].

^[16] R v Chankau [2007] NZCA 587 at [28].

^[17] R v Tamatea [2012] NZCA 443 at [25]; R v Laloni [2015] NZCA 55 at [8].