Goodman v R [2016] NZCA 64 (11 March 2016)

Last Updated: 17 March 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA522/2015 [2016] NZCA 64
BETWEEN	MICHAEL NEIL GOODMAN Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	K L McHugh for Appellant M J Lillico and J D Slankard for Respondent
Judgment:	11 March 2016 at 2.00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] After entering guilty pleas, Mr Goodman was convicted in the Invercargill District Court of assault with intent to injure and male assaults female. Judge Turner sentenced Mr Goodman to a term of imprisonment of two years and four months.^[1]
[2] Mr Goodman now appeals his sentence. The appeal was filed out of time but the Crown did not oppose an extension of time, which is accordingly granted.
[3] In written submissions, Ms Goodman’s counsel Ms McHugh submitted the starting point and various uplifts were excessive, a discount for guilty pleas was inadequate and cumulative sentences should not have been imposed. At the hearing, this stance was modified and the key argument became that at each step of the sentencing process the Judge took the sternest view available. Thus, it was submitted that while each individual step might withstand appellate scrutiny, the combined effect was to render the end sentence manifestly excessive. That argument is obviously problematic because if none of the steps was incorrect, it is difficult to see how the outcome could be wrong. However, elsewhere in the oral argument, Ms McHugh did also submit that the Judge erred in respect of five of the steps.
[4] In the circumstances, we have decided to address each of the steps but first turn to the factual background.

Factual Background

[5] Police initially charged Mr Goodman with injuring with intent to injure. Two weeks prior to trial, Mr Goodman offered to plead guilty to the charge of male assaults female. The prosecution countered with an offer of downgrading the injuring with intent to injure charge to the lesser charge of assault with intent to injure. This was rejected by Mr Goodman.
[6] On the first day of the trial, the charge of male assaults female was added by consent to the charge notice. The complainant then gave her evidence-in-chief. During cross-examination, it was put to her that Mr Goodman had not abused her for being a “nark” during the incident as she claimed. The prosecution then sought to adduce evidence of the recording of the 111 call made by the complainant while she was barricaded in her vehicle. Mr Goodman’s voice can be heard on the recording calling the complainant a “nark”.
[7] The fact the complainant had made a call to emergency services was known by the defence, but neither the transcript nor the recording had been disclosed to the defence. Defence counsel (not Ms McHugh) was given the opportunity to listen to the recording overnight. In the morning, counsel conferred and an agreement was reached under which the prosecution would reduce the charge of injuring with intent to injure to assault with intent to injure in exchange for Mr Goodman pleading guilty to that charge and the charge of male assaults female.
[8] Judge Turner described the facts on which he was sentencing in the following terms:

[3] ... this is an episode of family harm. You had an argument with your then partner. She returned to your home to collect her possessions. You returned while she was still there. A further argument then developed. I accept you wanted her out of the house.

[4] In respect of charge 1, assault with intent to injure, you grabbed her around the throat using two hands and threw her across the room over a wood basket. She got to her feet but you pushed her over. This continued on a number of occasions until you head-butted her and pushed her outside.

[5] The male assaults female charge, charge 2, relates to what happened outside. While she was on the porch, you pushed her. She fell backwards. You then kicked her to her shoulder with such force that she fell to the ground. You continued to abuse her. She took refuge in her car, which was parked on the lawn. At that point, she made a call on the 111 system to seek assistance. While she was doing that, you endeavoured to get to her in the car. As I have noted, the 111 call was ultimately played in Court and it was at that point you pleaded guilty.

[6] Some injuries were sustained by the victim. She received a cut to her forehead and redness and soreness around her neck area.

[9] Ms McHugh questioned the accuracy of some of the Judge’s asserted facts. As mentioned, the guilty pleas came after the Judge had heard the complainant’s evidence-in-chief. In our assessment, the Judge’s summary is generally supported by the evidence, with a possible exception being his statement there was redness and soreness around the neck. However, the Judge expressly acknowledged the injuries suffered were low level and, any error, if there was one, did not affect the starting point.

Starting point

[10] The Judge took as his lead offence the assault with intent to injure charge. He adopted a provisional starting point of two years for that offence with an uplift of 12 months reduced on account of totality to six months for the male assaults female charge.^[2] Later in the sentencing notes, the Judge applied a second discount on account of totality, thereby (as Ms McHugh accepted) effectively rendering the starting point to be 28 months.^[3]
[11] In submitting this was too high, Ms McHugh argued that, unlike Paikea v Police,^[4] a case on which the Judge relied, there was no feature of strangulation, fright or alarm, restricted breathing or loss of consciousness. She also disputed the Judge’s account of the incident as prolonged and further submitted the two offences were part of the same continuous incident. In her submission, the appropriate starting point was two years’ imprisonment.^[5]
[12] In our view, a starting point of 28 months was within the available range. We agree with the Judge this was a serious assault involving, as it did, attacks to the head and neck, and, while the victim did not lose consciousness, there was a strong evidential foundation from which the Judge could draw the inference that this would have been a very frightening and alarming incident for her. As submitted by the Crown, generally sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.^[6] An effective uplift of four months for the male assaults female charge was not excessive.

Uplift of four months for personal aggravating factors

[13] The Judge uplifted the starting point by two months on account of the fact that at the time of the offending Mr Goodman was on release conditions and also subject to a community work sentence.^[7] The Judge then added a further two months due to Mr Goodman’s previous criminal history.^[8]
[14] Ms McHugh told us the Judge made a mistake because Mr Goodman was not in fact serving a community work sentence at the time he committed the offences. She further submitted the uplift for previous convictions was not justified because none were for domestic violence and, while Mr Goodman does have convictions for violent offending, these were historic.
[15] We accept the Judge made an error about the community work sentence, but that does not necessarily mean the uplift should be reduced. Offending while on release conditions is not an insignificant aggravating factor. As for the previous violent offending, that was in 2005, 2003 and 2001. The index offending occurred in July 2014. But during some of the intervening period Mr Goodman was in prison and when not in prison continued to offend.^[9]
[16] We consider the Judge was entitled to find the convictions indicated a propensity for violence, a view which is also supported by the pre-sentence report, which stated Mr Goodman was at high risk of re-offending and moderate to high risk of harming others.
[17] In our view, the criticisms of the uplift are not sustainable. The case for an uplift to reflect personal deterrence and community safety concerns was strong.

Refusal to give discount for restrictive bail conditions

[18] As mentioned, the index offending occurred on 11 July 2014. Mr Goodman was released on electronically monitored bail from 29 October 2014 until 5 March 2015. Ms McHugh submitted a discount of two months on account of this was available and appropriate.
[19] In declining to give any discount, Judge Turner noted that ordinarily a person on such restrictive bail conditions might expect a discount on sentencing, but he was not prepared to give Mr Goodman any discount because he had been charged with serious drug offences during the period he spent on electronically monitored bail.^[10]
[20] We consider the Judge was entitled to take that approach.^[11]

Adequacy of the discount for guilty pleas

[21] Judge Turner allowed Mr Goodman two discounts for mitigating factors. The first was a two-month discount for remorse.^[12] Ms McHugh took no issue with that. She did, however, take issue with the five per cent discount the Judge allowed for the guilty plea to the assault with intent to injure charge. Ms McHugh submitted the discount should have been at least 10 or 15 per cent having regard to the last minute addition of the male assaults female charge and the non-disclosure of the 111 call recording.
[22] It was a central plank of Ms McHugh’s argument that the non-disclosure of the recording would have resulted in a retrial and therefore the guilty pleas did have value notwithstanding they had been entered after the complainant had given evidence. However, we consider a retrial was unlikely and note that trial counsel does not appear to have sought one or raised any such issue. Further, the guilty pleas were the product of a deal that resulted in a benefit to Mr Goodman, namely a reduction in charges. In our view, the Judge was not required to give a greater discount than five per cent.

Imposition of cumulative sentence

[23] The Judge structured the sentence by imposing a sentence of two years on account of the assault with intent to injure offence and a cumulative sentence of four months on account of the male assaults female charge.
[24] Ms McHugh submitted the sentences should have been concurrent sentences of no more than 21 months.
[25] We agree concurrent sentences would have been a more appropriate choice of structure given the two offences were part of the same incident and were similar in kind.^[13] However, the Judge did consider totality and make appropriate adjustments. Ultimately, as Ms McHugh accepted, the question we have to decide is whether a sentence of two years and four months’ imprisonment for this offending and this offender was manifestly excessive.^[14] The answer to that, in our view, must be no. This was a prolonged incident of serious domestic violence against a vulnerable victim resulting in more than transitory injuries by a man with a significant criminal record who entered a guilty plea during trial.
[26] We are satisfied appellate intervention is not warranted.

Result

[27] The application for an extension of time to appeal is granted.
[28] The appeal against sentence is dismissed.

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

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^[1] R v Goodman [2015] NZDC 15752.

^[2] R v Goodman, above n 1, at [16].

^[3] At [25].

^[4] Paikea v Police HC Whangarei CRI-2010-488-53, 29 October 2010.

^[5] In support of that submission, Ms McHugh undertook an extensive review of what were said to be comparator cases. In our view, the review illustrated that essentially these cases turn on their own particular combination of facts.

^[6] R v Reihana CA143/03, 3 July 2003 at [43]; Wati v R [2015] NZHC 2064 at [18].

^[7] R v Goodman, above n 1, at [17].

^[8] At [18].

^[9] In August 2009 he was sentenced to a term of imprisonment of three years and four months for property and drug offending and then in January 2013 to another term of two years for further property offending.

^[10] At [22].

^[11] Sentencing Act 2002, s 9(3A). See Gage v R [2014] NZCA 140 at [26].

^[12] R v Goodman, above n 1, at [20].

^[13] Sentencing Act 2002, s 84.

^[14] Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.