R v Cramond [2019] NZDC 443 (15 January 2019)

Last Updated: 26 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2017-075-000625

[2019] NZDC 443

THE QUEEN

v

ELISHA JACK CRAMOND MICHAEL SAM TORRINGTON

Hearing:	15 January 2019
Appearances:	H Wrigley for the Crown A Beveridge for the Defendant Cramond M Hine for the Defendant Torrington
Judgment:	15 January 2019

NOTES OF JUDGE K B F SAUNDERS ON SENTENCING

[1] Mr Torrington, Mr Cramond, you are for sentence now for your part in offending on [victim 1] and [victim 2] back in [date deleted] of 2017.

[2] The jury found you both guilty of causing grievous bodily harm with intent to cause grievous bodily harm on [victim 1] and threatening to kill and attempting to prevent the course of justice were the two other charges that the jury found you guilty of Mr Cramond.

[3] In terms of the facts that I conclude were accepted by the jury in accordance with their verdicts, the offending, it occurred at your home Mr Torrington, you were working as a farmhand. You and [victim 1] and [victim 2] knew one another.

R v ELISHA JACK CRAMOND [2019] NZDC 443 [15 January 2019]

Mr Cramond, you were a friend of Mr Torrington’s but you were not known by [victim 1] and [victim 2] before that day. [Victim 2] had spent some time with both of you earlier that day and I take the view that both of you were angered by disclosure from [victim 2] about conduct in the past of [victim 1] and you did indeed decide you wanted to teach [victim 1] a lesson, and that is the irony of all of this. You beat [victim 1] horrifically that night. You inflicted violence as a means of teaching him not to be violent. I hope you appreciate the absurdity and the irony of what you did that day.

[4] There was an initial confrontation in the house that resulted in [victim 1] fleeing, as he described it, for his life. When you consider the circumstances he was in that night, it was pitch black, it was [month deleted], it had been raining. He was really unfamiliar with the area and he was running away along what has been described as “the race”. Initially, Mr Cramond, the evidence was that you were the first giving chase and caught up to [victim 1] on the race. There is no doubt, Mr Torrington, that you followed shortly behind. I accept that Mr Cramond delivered the first blows, but I also conclude that the jury’s verdict means that they were satisfied that once [victim 1] was on the ground in that foetal position trying to defend himself that the pair of you repeatedly kicked him, punched him, stomped on his head and on his body. I accept the evidence before the jury on [victim 1]’s account was at least 30 kicks and he was able to differentiate between the type of force that was used by the two offenders the jury were satisfied were the pair of you. The kicking was described as being like a rugby ball. There were times when [victim 1] was unable to see because gravel and cow manure had been rubbed into his eyes and into his mouth. Clearly, the injuries to his body included the genital area and without doubt, Mr Torrington, you bit down on one of [victim 1]’s fingers. The evidence from [victim 1] was “locking eyes with you” when you did that. There is also blunt force trauma to [victim 1]’s neck that is consistent with force being applied to it. I cannot be sure a rock was used, so do not take that into account, nor do I approach sentence on the basis there is a sexualised element to it. But clearly the jury rejected your claims that neither of you were the ones beating [victim 1] that night. Somewhat inevitably, I would have thought, the jury’s conclusion was that it was you two and of course this business about the use by [victim 1] of a chisel that night, Mr Torrington, I am satisfied was clearly rejected by the jury. Whilst a chisel had been used, it had been used the day before and [victim 1] had not used it violently against you.

[5] Threats to kill [victim 1] and indeed [victim 2] were made by you Mr Cramond while down at the race and the attempting to prevent the course of justice that occurred after it had all ended when the police were on the property and I accept the evidence at trial was that you confronted [victim 2] in the house just before the police arrived at the house. You had already had a brief interaction with a police officer. You knew they were present and you did indeed threaten her with violence if she caused you any trouble by going to the police. She said that you had a pair of pliers in your hands at the time the threat was made and I am satisfied, notwithstanding the jury could not be sure in respect of charges specifically directed where she was a victim, that they would have accepted that evidence.

[6] As to the injuries to [victim 1], the victim impact statements you have heard read by [victim 1] and for [victim 2] by their brother. Other than the bite to his finger, where I have already said [victim 1] described locking eyes with Mr Torrington, the Crown could not point to any specific act by you individually leading to the injuries sustained by [victim 1], but again I am satisfied that the guilty verdicts mean that the jury accepted that you were equally responsible because both of you inflicted the kicks, the stomps and the punches to [victim 1] and sentencing will proceed on the basis that each of you is culpable for the injuries caused to [victim 1] that night. Those injuries, of course, include the lifelong consequences to his sight. He has lost the sight in his [injury details deleted]. He has reduced vision, on a bad day he said 20 to 30 percent, on a good day 60 to 70 percent. He is still a young man. The brain bleed has caused ongoing memory loss and speech difficulties. His nose was fractured. There was the extensive bruising to his body, including his groin and anal area. There was bruising to his neck and to his chest and the bite to his finger, Mr Torrington, has resulted in the loss of feeling to the tip of it.

[7] In terms of your history, Mr Torrington, you do have convictions for violence. In 2012 in particular you were convicted of assault with intent to injure and a threat to kill. You were sentenced to imprisonment for eight months. You do also have breaches of a protection order.

[8] Mr Cramond, you are not a first offender and clearly you have issues with alcohol and cannabis abuse, given your convictions, but you do not have any convictions for violence.

[9] The pre-sentence reports I have read from both of you assesses the risk of re-offending for each of you as being at least in the medium range.

[10] Mr Torrington, while you continue to maintain your innocence in terms of the offending, other than the bite to the finger, which I cannot see any basis for you to shy away from, the writer of the report says you do express remorse.

[11] Mr Cramond, I today have received a letter from you in which you have written of remorse for your conduct on that night. I have also read letters that have been written in support.

[12] It is accepted by all of the lawyers that R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) determines the sentence I will impose on you on the charge of causing grievous bodily harm with intent to do so.1 Band 3 has a starting point range of nine to 14 years’ imprisonment encompassing serious offending with three or more of aggravating features that are set out in Taueki. I am satisfied that the aggravating features that are present here are the fact that extreme violence was inflicted, it was persistent to a degree, it was unprovoked and it was completely gratuitous. Serious injury has resulted to [victim 1], with the long-term loss of his eyesight. His head was particularly targeted. There were of course the two of you. He was vulnerable, he was on the ground, he was defenceless, he was as I have already said slipping in and out of consciousness and he could not see a large part of what was happening because of what had been meted out to him and I take the view that this was vigilante action.

[13] There is no guideline judgment for threatening to kill and the assessment of where that sits in terms of culpability is by nature of all the surrounding circumstances. Similarly, there is no guideline judgment for preventing the course of justice. The focus has to be on the intention behind the attempt and on its potential effect.

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

[14] There is distance between the Crown and your counsel as to where the offending sits in Taueki. It is the Crown’s submission that the offending falls within the upper end of band 3, with a starting point of between 11 and a half and 12 and a half years’ imprisonment. The aggravating factors I have already referred to are largely relied on by the Crown. The Crown also describes your offending as being particularly degrading and demeaning violence and having sat through the trial, I too adopt that description of it. It is not something that is said lightly, but having listened and heard the evidence, I too have come to that conclusion.

[15] The Crown has referred to a number of authorities in support of its submission. I have read all of the authorities that have been referred to. I do not intend to do a case by case analysis because ultimately they assist, but Taueki is the guide for me. The Crown submits that in terms of the other offending for you, Mr Cramond, standing alone the threat to kill would warrant a starting point of 18 months’ imprisonment because of the violence, the context in which it was made and the perverting the course of justice would warrant a starting point of two years’ imprisonment.

[16] Mr Cramond, turning to the submissions that have been made on your behalf. Ms Beveridge urges me to adopt a starting point of nine years’ imprisonment, again by reference to a number of authorities I have read but do not intend to particularly discuss. She acknowledges the attack to the head, the fact that there were the two of you and the extent of the violence and the serious injury, but she does point out that without minimising the injury, it is not as serious as some cases and she urges that starting point at the low level of band 3. As to the two remaining charges for you, Mr Cramond, she describes them both as not being particularly sophisticated and occurring in the context of the greater offending and spur of the moment. She refers to factors that she says are mitigating factors in your favour. She refers to attempts made by you to facilitate the disposition through seeking an earlier sentence indication and the sticking point for you was the sexual violation charge. However, it needs to be said that ultimately you defended all matters and that submission does not hold any attraction to me. Your remorse I accept is genuine remorse now Mr Cramond and I do acknowledge that such violent offending is out of character for you and you are still a relatively young man. Overall, Ms Beveridge submits a starting point, having regard to totality, of 10 years’ imprisonment with a deduction she says can be given for

remorse, but she is of the view that there is no need for a minimum period of imprisonment.

[17] Mr Torrington, on your behalf counsel urges me to follow the approach of the sentence indication on 3 August where the starting point for you was indicated nine years’ imprisonment, with an uplift that included sexual violation that came to a starting point of 10 years. It is submitted on your behalf that there is reason to distinguish between your culpability and that of Mr Cramond’s because it is said you came relatively late to the scene and while you are remorseful for the injuries, you do maintain your innocence saying at best you were a witness only. So that while it is acknowledged on your behalf that there was extreme violence and [victim 1] was seriously injured, it is urged on me to accept Mr Cramond as the initiator and at best you responsible for the bite to [victim 1]’s finger only. Again, Mr Hine urges a starting point at the low end of band 3. He acknowledges the imposition of a minimum period of imprisonment.

[18] I have already said to you, Mr Torrington, that I do not view you as being less culpable that Mr Cramond. I am of the view that the jury’s verdict shows clearly that you joined in as [victim 1] described you did.

[19] Turning now to sentence you, the purpose of sentencing you is to hold you both accountable. It is to deter you. It is to denounce your conduct. It is to provide for the victim of your offending. As to the charge of grievous bodily harm with intent to cause grievous bodily harm, that is charges 2 and 3 in the Crown charge notice, this was a horrific beating meted out to [victim 1], driven by a misguided need for vigilante justice. I am satisfied that the jury’s verdicts, as I have said, demonstrates acceptance of a joint plan, by both of you, to harm him. You are each responsible for the serious injuries to [victim 1]. The 111 call was made during the attack down at the race. Significantly, it did not stop it, it did not deter either of you, and the aggravating factors are as I have already alluded to, although there is some overlap and some are more serious than others.

[20] I am satisfied that the offending is towards the middle of band 3 of Taueki and the starting point for you both on that charge is 11 years’ imprisonment. For you,

Mr Torrington, I am satisfied that a modest uplift is warranted for your history of violent offending because it is similar in nature, highlights the need for deterrence and protection of the community and that uplift is three months’ imprisonment. That gets me to an end sentence on charge 2 of imprisonment for 11 years and three months. In terms of mitigation, I do not find there are any factors that I could give for mitigation and certainly there is nothing in terms of remorse or acceptance of responsibility. The fact that you were on restrictive bail is not something that I can and will take into account. You continued your life and were able to work. That means the end sentence for you on charge 2 is imprisonment for 11 years and three months.

[21] Mr Cramond, for you too I adopt that same starting point on charge 3. I need to factor into that starting point of 11 years the other offending. It does not justify cumulative sentences because it was part of the continuum of offending. My approach is one of totality and in terms of the uplift for charge 7, the threat to kill, and charge 8, attempting to prevent the course of justice, I do think on their own each would warrant a starting point of 12 months’ imprisonment because of the context in which the offending occurred. Having regard to totality, the uplift I give for that offending is one of 12 months’ imprisonment. That gets me to an end starting point of imprisonment for you on all charges Mr Cramond of 12 years’ imprisonment. I do not give you an uplift for your previous convictions. In terms of mitigation, Ms Beveridge has referred to a number of factors, as I have already said. I will give a modest adjustment, but it will be no more than modest, for the remorse that you do now express and that adjustment is four months. I do not give credit for any other factors that have been referred to. Whilst I acknowledge you have a difficult background, sadly it is all too familiar for those that appear in this Court. That means then that the end sentence for you, Mr Cramond, on charge 3, is 11 years and eight months’ imprisonment. On charges 7 and 8, you are sentenced to imprisonment for 12 months’ concurrent.

[22] I turn finally to consider whether there should be a minimum non-parole period for both of you and I am conscious of the observations of the Court of Appeal in Taueki that minimum periods of imprisonment will not be rare or uncommon for cases of serious violence and this is a case of serious violence. I am satisfied that the usual minimum period of parole will not adequately meet the sentencing purposes of

denunciation, deterrence and most importantly accountability and the need to protect the public. While I accept Mr Cramond you do not have a history of violence you clearly acted as the violent instigator of what occurred that day. You were the one that first ran out pursuing [victim 1] and the sole purpose of doing that was to hurt him. I am satisfied that a minimum period of imprisonment of 50 percent will meet the purposes of sentencing you today and the minimum period of imprisonment, the minimum non-parole period for both of you is 50 percent. That I think takes care of all matters.

K B F Saunders District Court Judge