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C (CA155/2014) v R [2015] NZCA 33 (27 February 2015)

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C (CA155/2014) v R [2015] NZCA 33 (27 February 2015)

Last Updated: 5 March 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
10 February 2015
Court:
Cooper, Venning and Andrews JJ
Counsel:
W N Dollimore for Appellant S K Barr for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

[1] Mr C appeals against his sentence of four years and two months’ imprisonment on two representative counts of assault with a weapon, two representative counts of assault on a child, and one count of injuring with intent to injure. That sentence was imposed by Judge Burnett in the Hamilton District Court on 25 February 2014, after Mr C was convicted following a jury trial.[1]

Factual background

[2] Mr C is a relative of the two victims, T and W. The two boys were in the care of Mr C and his wife for two years up until late 2012. The children were both under ten years old. They lived with Mr and Mrs C on a rural property and attended a local school. Mr and Mrs C have two sons, one born while T and W were in their care.
[3] T and W gave evidence of various acts of violence committed by Mr C against them while they were in his care. T described being whacked with a hose on a number of occasions, usually on his bottom but also on his head and hands. Following an incident at school, in which T fought with another boy, he described being tied to the bed by Mr C who continued to strike him with the hose. W also described the hose being used to strike his bottom and his hands. On one occasion his hand swelled up and turned a purplish colour. W was taken to a doctor with this hand injury, where Mrs C claimed that the damage was caused by a motorbike accident. On another occasion, W described being struck with the hose on his bottom until it bled. No medical treatment was sought, and he was told he would have to wait until his injuries healed. Both T and W also described being hit about the body, head and face by Mr C with a closed fist.
[4] The final incident with T, which he described as the worst, and in respect of which Mr C was charged with injuring with intent to injure, occurred in November 2012. T’s evidence was that Mr C accused him of cheating at school and was dissatisfied with his response. This argument turned violent with Mr C punching T repeatedly in the living room. Mr C then told T to go to the bathroom and clean his nose which had begun bleeding. When T did so Mr C followed him and continued to hit him. T was then forced into the bath, which had been run for Mr and Mrs C’s youngest son, and held with his nose and mouth under water. He thought he was going to drown. The incident ended when Mrs C intervened. Following this incident T had two swollen black eyes, and was unable to see out of one eye. He recalled being kept off school for “a week and one day.” School records confirmed that T was absent for seven days. The school also noted that T had black eyes when he returned, and took photographs. T and W left Mr and Mrs C’s care soon after this incident.
[5] Mr C was acquitted on two further counts, charged in the alternative, relating to an incident described by W in which Mr C became angry because W had not properly tied up the dogs. The dogs began fighting, and W’s evidence was that Mr C forced his hand near to the fighting dogs so that it was bitten.
[6] At trial, and in his interview for the pre-sentence report, Mr C denied all offending. It was suggested that T and W had a history of lying, and that they were lying about the offending in order to be removed from Mr and Mrs C’s care. It was further suggested they were simply active, injury-prone country children, and that this explained many of their injuries.

District Court sentencing

[7] The Judge outlined the offending as described by T and W. She noted that when T returned to school after the final incident it was apparent he had been the subject of a vicious assault, and that this was clearly demonstrated by the photographs taken some 10 days after the assault occurred.[2]
[8] The Judge recorded the following aggravating factors of Mr C’s offending:
[9] The Judge did not consider that there were any mitigating features.
[10] The Judge took the charge of injuring with intent to injure and the two charges of assault with a weapon (each of which carries a maximum sentence of five years’ imprisonment) as the lead offending. For this offending, the Judge adopted a starting point of two years and eight months’ imprisonment. The starting point was then uplifted by 18 months for the balance of the offending and the overall totality of the offending. Accordingly, the end point was four years and two months’ imprisonment. The Crown did not seek a minimum period of imprisonment, and none was imposed.

Submissions

[11] Mr Dollimore submitted for Mr C that a sentence of four years and two months’ imprisonment was manifestly excessive. He submitted that the Judge should have adopted separate starting points for each type of offending and that, overall, the starting point should have been in the order of two years and six months to three years’ imprisonment. He acknowledged that this would also have been the end sentence, as the Judge was not in error in finding no mitigating factors. In support of his submission that the Judge should have adopted a lower starting point, Mr Dollimore referred to a number of “non-aggravating” factors, for example that Mr C’s offending was not pre-meditated but was a response to frustration caused by the boys’ troubled behaviour, that he did not intend to injure T but rather was reckless as to whether he might do so, and that T and W’s injuries were at the lower end of the scale of violent injuries, basically limited to bruising.
[12] Mr Dollimore also submitted that Mr C’s lack of prior convictions for violence should have been taken into account, as should the fact that he has been a hard working employee and family man with considerable whānau support. Mr Dollimore also referred to the pre-sentence assessment that Mr C is unlikely to reoffend as the sources of his frustration (the two victims) have been removed.
[13] For the Crown, Mr Barr submitted that, given the number of aggravating factors, the starting point for the lead offending was generous, and that the uplift for the remaining offending, and for totality, was justified. He acknowledged that the end sentence was at the upper end, but submitted that it was within range.

Analysis

[14] An appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the end sentence imposed, rather than the process by which the sentence is reached.[3]
[15] In sentencing Mr C, the trial Judge applied this Court’s judgment in Nuku v R.[4] In that case the Court set out guidance for adapting the sentencing bands in R v Taueki for offending involving the infliction of violence.[5] The Court said a starting point of two years’ imprisonment up to the maximum penalty (in the present case, five years’ imprisonment) will apply where three or more of the aggravating features set out in Taueki are present, and the combination of those features is particularly serious.[6]
[16] We were referred to this Court’s judgments in M (CA823/2009) v R and M (CA838/2011) v R.[7] In the former case, the Court upheld a starting point of two years and six months (and an end sentence of three years and six months’ imprisonment) where the appellant was found guilty of nine counts of assault with a weapon and one count of assault on a child. In the latter case, the Court upheld an end sentence of two years’ imprisonment after the appellant was found guilty of a single count of assault with a weapon (a starting point was not identified in the judgment). However, there is no real similarity between the facts of either of those cases and the present case.
[17] Here, Mr Dollimore did not challenge the Judge’s identification of aggravating factors. We are not persuaded that the Judge erred in setting the starting point on the lead offending at two years and eight months’ imprisonment. Indeed, in the light of the combination of aggravating factors, there is force in Mr Barr’s submission that a higher starting point could have been adopted. Nor are we persuaded that the Judge erred in applying an uplift of 18 months in respect of the two charges of assault on a child, and the totality of Mr C’s offending.
[18] As noted earlier, whether a sentence is manifestly excessive is to be examined by looking at the end sentence, rather than the process by which that sentence was reached. We are not persuaded that the end sentence of four years and two months’ imprisonment was manifestly excessive. While the sentence was at the upper end of the available range, it was nonetheless within that range.

Result

[19] The appeal against sentence is dismissed.




Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v [C] DC Hamilton CRI-2013-073-85, 25 February 2014.

[2] At [6].

[3] Ripia v R [2011] NZCA 101 at [15].
[4] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

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

[6] Nuku v R, above n 4, at [38(c)].

[7] M (CA823/2009) v R [2010] NZCA 94 and M (CA838/2011) v R [2012] NZCA 92.

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