Cunningham v R [2019] NZCA 622 (5 December 2019)

Last Updated: 11 December 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA130/2019 [2019] NZCA 622

	BETWEEN	NIGEL JOHN CUNNINGHAM Appellant
	AND	THE QUEEN Respondent

Hearing:	17 October 2019
Court:	Miller, Simon France and Hinton JJ
Counsel:	L M Drummond for Appellant M N Zarifeh and SRDD Bicknell Young for Respondent
Judgment:	5 December 2019 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS

Miller and Hinton JJ [1]
Simon France J (Dissenting) [38]

MILLER AND HINTON JJ

(Given by Hinton J)

[1] Mr Cunningham was convicted following a jury trial in the District Court at Greymouth of three charges of male assaults female and two of assault with intent to injure. He was sentenced by Judge O’Driscoll on 28 February 2019 to three and a half years’ imprisonment.^[1] On six other charges he was either acquitted or discharged.
[2] Mr Cunningham initially appealed against conviction and sentence. However his counsel confirmed at the hearing that his conviction appeal was not proceeding, leaving the appeal against sentence only.

The sentencing decision appealed against

[3] The five charges on which Mr Cunningham was convicted all relate to assaults against his then partner.
[4] Judge O’Driscoll took charge 5 as the lead charge. This was a charge of assault with intent to injure. On 2 April 2018 Mr Cunningham strangled his partner using a dog‑chain. The complainant said that she could not breathe; she felt her eyes twitching and became dizzy. The identified aggravating features were assault to the head and neck, use of a dog chain-for strangulation, the intimate relationship with the complainant and her clear vulnerability including suffering from serious mental health issues.^[2] The Judge adopted a starting point of two years’ imprisonment,^[3] declining to take into account new laws involving strangulation which were introduced after the offending took place.^[4]
[5] The Judge then uplifted the starting point by 12 months on charge 1, a representative charge of male assaults female.^[5] That charge involved Mr Cunningham punching the complainant in the head and neck over a six month period between 1 October 2017 and 5 April 2018. The Judge said it was difficult to assess the nature and frequency of the assaults on the evidence. The complainant’s evidence was that the assaults occurred on a weekly basis. The Judge said that it was clear that the assaults were “regular and frequent”.^[6]
[6] The Judge then applied a further 12 month uplift to reflect the remaining three charges (4, 9 and 11).^[7] Charge 4 was a charge of male assaults female, involving Mr Cunningham throwing the complainant out of the door of the home onto a concrete floor. This occurred on a date between 1 January 2018 and 28 February 2018. Charge 9 (assault with intent to injure) involved Mr Cunningham punching the complainant in the eye on 4 April 2018 when they were in Kumara, causing her to sustain a black eye. Charge 11 (male assaults female) involved strikes or blows or punches which occurred inside a car in a Countdown carpark in Greymouth on 5 April 2018. The Judge said Mr Cunningham delivered a number of blows to the complainant, the exact number and nature being something which could not be accurately assessed.^[8]
[7] The Judge referred to assaults taking place to the head and neck of the complainant on a frequent basis.^[9] It is unclear whether this was a reference to all of the assaults in charge 1 and charge 11, but we take it as referring to at least the great majority of them. Charge 9 also involved an assault to the complainant’s head, being the punch to her eye.
[8] The Judge recorded that the complainant suffered physical injuries as well as emotional consequences. He did not describe the physical injuries except for the black eye. However, he said the complainant herself described the injuries and emotional consequences she suffered in her victim impact statement. In that statement she referred to being badly bruised on the face, arms and throat and having a suspected injury to her back. She said she has short term memory loss as a result of her beatings and is constantly petrified of retaliation.
[9] The Judge said there were no mitigating factors in relation to the offending.^[10]
[10] He imposed no uplift for previous offending which included convictions in 2017 for possession of an offensive weapon and threatening to kill; in 2004 for unlawful intimidation and threatening to kill; in September 2003 for unlawful possession of a pistol; and in April 2003 for common assault and possession of an offensive weapon.^[11]
[11] The Judge considered totality but said he did not believe the sentence breached that principle because of the seriousness and gravity of the offending and the period of time over which the offending took place.^[12] He also noted that the effects on the complainant and her vulnerability meant Mr Cunningham’s culpability was high.
[12] A six month deduction was allowed on account of five months spent on electronically monitored bail on restrictive conditions, and on account of remorse.^[13]
[13] That led to the final sentence of three and a half years’ imprisonment.

Grounds of appeal

[14] Although the appeal originally included an argument over the starting point for the lead charge, in oral submissions Ms Drummond did not pursue that point. She submitted that the final starting point was excessive because one or both uplifts were too high, or on the basis of totality.
[15] Ms Drummond also submitted that the six month discount was too low, contending that the discount for restrictive EM bail alone should have been around 10 months’ imprisonment and then there should have been a further deduction for remorse.
[16] Overall, Ms Drummond submitted that the sentence of three years six months’ imprisonment was manifestly excessive.

Starting point

Lead charge

[17] As totality is at issue we first consider the starting point for the lead charge of assault with intent to injure, although it is no longer in contention as a standalone point.
[18] There is no guideline judgment for the offence of assault with intent to injure. However the Court of Appeal in Tamihana v R found that the approach adopted in the Nuku v R guideline judgment — of three bands, by reference to aggravating factors — is helpful in sentencing for offending against s 193 of the Crimes Act 1961.^[14] The current offending fits between band two and band three of Nuku as it involves at least three aggravating features — attacking the head or neck, victim’s vulnerability and use of a weapon, the dog-chain being treated as a weapon in these circumstances. A sentence of between two and three years’ imprisonment would therefore be appropriate, but we note that three years is the maximum penalty for this charge.
[19] In Goodman v R the defendant had grabbed the complainant around the throat using both hands and thrown her across the room over a wood basket.^[15] When she got to her feet he pushed her over several times, head-butted her and pushed her outside. This gave rise to a charge of assault with intent to injure. Outside, he continued to push her. He then kicked her shoulder with such force that she fell to the ground. This gave rise to a male assaults female charge. The Judge took a starting point of two years for the lead offence of assault with intent to injure with an uplift of 12 months reduced, on account of totality, to four months for the male assaults female charge.^[16] The starting point for both offences was therefore two years four months. This was upheld on appeal. This Court held:^[17]

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.

[20] The facts of the lead charge here, involving strangulation with a dog-chain where the complainant could not breathe and became dizzy, are arguably more serious than Goodman and clearly merited a starting point of two years. We agree with the Judge that this offending was callous.^[18] It was also degrading.

Uplift for three charges

[21] Drawing again on Goodman, we consider that the 12 months’ uplift for three charges (assault with intent to injure, and two male assaults female) is in line with authority. In Goodman an effective uplift of four months’ imprisonment was given for one charge of male assaults female which was after a significant reduction for totality. In upholding the uplift this Court stated that “a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months” and that an effective uplift of four months was not excessive.^[19] The 12 month uplift for the three charges here represents in approximate terms a four month uplift for each. (Probably the assault with intent to injure would attract a six month uplift while the male assaults female charges might each attract a three month uplift.)
[22] We also note that in Nixon v R the appellant was convicted of one charge of male assaults female and sentenced to 12 months’ imprisonment for offending which, though worse, was not dissimilar to Mr Cunningham’s offending on charge 4 only.^[20] The three charges combined would merit a materially higher penalty than in Nixon. This again supports the uplift of 12 months.

Uplift for representative charge

[23] Ms Drummond said that the main issue with the sentencing is the uplift for the representative charge (charge 1). She submitted that if the representative charge were a stand-alone charge, Mr Cunningham would have been sentenced to 12 months’ imprisonment and an uplift should have been limited to eight months. She did not refer to comparable cases, nor did the Judge, and we acknowledge that it is difficult to compare cases in this context.
[24] We agree that a 12 month uplift for the representative charge is high.
[25] In R v Harrison where the lead offence was manslaughter, the Court adopted a starting point of four and a half years, and uplifted by three months to reflect two representative charges of male assaults female.^[21] This is significantly lower than the uplift here. However in this case the representative charge was held by the Judge to represent assaults on a frequent basis. These were quite separate to the other charges. In Harrison the lead offence was manslaughter so the starting point was significantly higher and the representative charges involved striking two complainants about the head before dealing the fatal blow so they were part of an ongoing course of conduct.
[26] As stated, the cases are very difficult to compare.
[27] R v Coker, although not involving a representative charge, was a case of five counts of male assaults female which were all punches or slaps to the head, in total being less significant than the overall offending in respect of the representative charge here.^[22] This Court did not consider a term of 18 months’ imprisonment in respect of those charges was excessive. That would tend to support an uplift of something in the region of six to eight months for the representative charge in this case, making some allowance for totality.
[28] Overall, we consider the 12 month uplift for the representative charge is high and that eight months, which we consider to be the upper end of the range, would have been more appropriate. We note that was also the submission made by the appellant.

Discount for restrictive EM bail and remorse

[29] We do not see any error in the discount of six months, in fact we consider it generous to the appellant.
[30] It was appropriate for there to be a discount for restrictive EM bail, but that could not be so high as to be on a one-for-one basis.^[23] Three months’ discount on that account would be reasonable to reflect the five months on EM bail, which would mean the Judge effectively discounted by three months on account of remorse.
[31] In the present circumstances we consider a discount of three months for remorse to be generous and probably unwarranted. Mr Cunningham defended the charges on the basis the complainant’s injuries were self-inflicted or inflicted by others. Remorse consisted of a letter handed up to the Judge on the day of sentencing. The letter cannot be located. The extracts referred to by the Judge in his sentencing notes are more in the nature of blame-sharing, and not what can properly be described as remorse. The Judge recorded:

[23] I have read the letter that you have written to me setting out a number of matters. While you originally sought a sentence of home detention you accept that that is now not possible. I accept what you have said about your previous involvement with gangs, that you left some time ago. You have also explained why your partner did not consent to you receiving an electronically monitored sentence at her address. You have indicated that you are remorseful and sorry for your part in what you have described as a toxic relationship. You have indicated that you should never have gotten into this situation. You want to repair the damage that has been caused in the past. Again, I simply repeat, Mr Cunningham, that actions speak louder than words.

[32] The Judge obviously did not consider the letter particularly relevant. We agree. We consider it was in fact irrelevant. Not only is the Judge’s summary of the letter inconsistent with true remorse but the complainant wrote in her victim impact statement that she is “constantly petrified and fear[s] retaliation from [Mr Cunningham] and his Mongrel Mob connected friends”. That is hardly consistent with Mr Cunningham’s expressed remorse.
[33] We do not accept that the Judge’s allowance of a six month discount was too low. In our view, the discount should have only been three months.

Is the final sentence manifestly excessive?

[34] While we consider the uplift for the representative charge is high, we consider the six month discount was high also. We also agree with Mr Zarifeh that there could have been a small uplift for prior convictions, and there should have been if any related to previous family violence, which is not known.
[35] In terms of totality, we bear in mind, as the Judge expressly did, that overall this was sustained and serious offending against a vulnerable partner. Society requires a firm sentence for cases of this kind for deterrence, and particularly for the protection of vulnerable women in dangerous relationships. While a deduction could have been made for totality, we would not disturb the Judge’s decision against doing so. Also we consider some deduction for totality is built into the uplifts as we have assessed them.
[36] Overall the sentence of three years six months’ imprisonment for this offending and this offender is stern but we do not consider it manifestly excessive.

Result

[37] The appeal is dismissed.

SIMON FRANCE J

[38] In my view each link in the chain is at least towards the top of the range available for the conduct if being assessed as a stand-alone offence. I disagree that a totality adjustment was not required. Each link is for similar conduct against the same complainant. Each is at the top of the range. Factored into the sentence for each link will be the same features such as the domestic context, breach of trust and vulnerability. The on-going impact on the complainant equally flows from the overall course of conduct and one must avoid counting it each time. A totality adjustment recognises these risks.
[39] I would reduce the starting point by six months for this aspect. However, I agree the discount for time on EM bail was too high and so would not give Mr Cunningham the benefit of the full reduction. Although it is a modest reduction, I would allow the appeal and reduce the sentence by four months.

Solicitors:
Raymond Donnelly & Co, Christchurch for Respondent

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^[1] R v Cunningham [2019] NZDC 3955 [Sentencing notes].

^[2] At [11].

^[3] At [26].

^[4] See Crimes Act 1961, s 189A.

^[5] Sentencing notes, above n 1, at [26].

^[6] At [10].

^[7] At [26].

^[8] At [3].

^[9] At [11].

^[10] At [27].

^[11] At [19]. The penalties were all low-level and in two instances Mr Cunningham was convicted and discharged.

^[12] At [28].

^[13] At [27].

^[14] Tamihana v R [2015] NZCA 169 at [16]; and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

^[15] Goodman v R [2016] NZCA 64.

^[16] At [10] and [12].

^[17] At [12].

^[18] Sentencing notes, above n 1, at [24].

^[19] Goodman v R, above n 15, at [12] (footnote omitted).

^[20] Nixon v R CA87/01, 19 June 2001.

^[21] R v Harrison [2014] NZHC 3115.

^[22] R v Coker CA421/04, 21 April 2005.

^[23] Parata v R [2017] NZCA 48 at [11]–[14].