R v Aitken [2021] NZDC 24869 (15 December 2021)

Last Updated: 1 May 2023

IN THE DISTRICT COURT AT TAURANGA I TE KŌTI-Ā-ROHE KI TAURANGA MOANA

CRI-2021-070-000827

[2021] NZDC 24869

THE QUEEN

v

JOHN AITKEN

Hearing:	15 December 2021
Appearances:	C Lee for the Crown (via VMR) C Tuck for the Defendant
Judgment:	15 December 2021

NOTES OF JUDGE C J HARDING ON SENTENCING

[1] Mr Aitken, you appear today for sentence having pleaded guilty on the day of trial to two charges; one of injuring with intent to cause grievous bodily harm and the other of threatening to kill.

[2] For reasons which are unexplained you had the view that your victim had behaved improperly towards your son. You parked your car outside a set of shops in Arataki, you walked up to where the victim was seated and with full force began punching him in the head and the upper body. While you were doing that you told him to get out of Arataki or you would end his life and you asked him why he had picked on your son.

R v JOHN AITKEN [2021] NZDC 24869 [15 December 2021]

[3] You are said to have punched him 10 times in the head and upper body and when he fell from the bench seat onto the footpath he lost consciousness. You then stomped on his upper body and kicked him twice in the head before standing over him and striking him two further heavy blows to the head, kicking him to the upper body again, grabbing him by the head and punching him two further times. Then you walked to your car and drove off.

[4] It is clear that this had a considerable affect on the victim. He had never seen you before. Your attack was entirely unexpected. He was hospitalised and received fractured ribs and bruising to his head and body. He now suffers from loss of vision in one eye. He no longer likes being out in public and is still unable to believe what happened to him.

[5] You have a significant list of prior convictions, many of them now some time ago, but including charges such as wounding.

[6] In sentencing you I am required to have regard to the purposes of sentencing, including denunciation, the promotion of responsibility, an acknowledgement of the victim’s interests. Aggravating this very clearly is the extent of the violence because violence is of itself inherent in the charge. There is considerable vulnerability to the victim who simply had no idea what was coming. This was premeditated. You knew what you wanted to do and went and did it and the previous convictions are of relevance. But you are to be sentenced consistently with others having regard to the effect to the victim.

[7] Mr Tuck emphasises your guilty plea and remorse. I will return to those.

[8] The Crown submits that the starting point is properly eight years for the injuring charge with an uplift of three months for the threats. The Crown submits, correctly in my view, that this was a case of extreme violence, premeditation, where the extent of the injuries is an aggravating factor. You attacked the head in particular of a victim who was vulnerable. The Crown submits that the eight year start point should be uplifted by six months to reflect your previous conviction and that the plea discount should be minimal because the plea was on the day of trial.

[9] Mr Tuck submits that the proper start point is closer to six and a half years, that this is upper of upper band 2, that there ought to be a three month uplift for the threat, a 10 per cent reduction for remorse and rehabilitation, 10 per cent for plea, five to 10 per cent for s 27 factors. Overall, Mr Tuck thinks a 40 per cent discount, which is generous in the extreme.

[10] The pre-sentence report observes that this was action out of anger and vengeance with a very serious assault resulting in hospitalisation with significant injuries. The probation officer concludes that suggests entrenched attitudes condoning severe violence in some circumstances. It recommends a sentence of imprisonment. It refers to the fact that you spend most of your time at home when not at sea working as a commercial fisherman, a job which you have had for some 10 years. You are clearly well-regarded at work. There is a reference to that effect.

[11] The probation report says you clearly hold attitudes that condone the use of extreme violence to do this, but accepts that you have expressed remorse to the victim through the restorative justice conference where the victim indicates that there is no financial reparation sought. You propose emotional harm reparation of $10,000, but it seems that that is not sought by the victim.

[12] I have a certificate indicating that since these events you have attended a family violence course. I have a letter from your whānau and one from your wife. You obviously have support within your family, both immediate and expanded. I have a s 27 report. That indicates that your father was violent, but you lived in a tight family unit, but that there has subsequently been dysfunction and traumatic episodes around you. You were the one who initiated restorative justice and you self-referred to the non-violence programme. You are described as a staunch family man who believes in prosocial behaviour and that is the antithesis of what was involved on this occasion. You are said to be working alongside the gang Harm Reduction Unit and the report writer says that there has been a huge transformation in your views to things.

[13] This is a report which refers to progress which you have made. It is not a report which indicates a particularly deprived upbringing and there is no strong connection between the contents of that report and the actions that you undertook on this day.

[14] This was a serious unprovoked and unexpected attack. In my view it sits between bands 2 and 3 and the aggravating factors identified by the Crown are all present. The proper starting point in my view is seven years’ imprisonment. The appropriate uplift for the threat to kill and previous matters which are considerable takes that to seven and a half years. Your plea came on the day of trial and was in the face of an overwhelming Crown case, complete with CCTV of what happened. The discount can only be minimal.

[15] You have been prepared to attend restorative justice and you have been to a Living Without Violence course and are accepted as remorseful and you are undoubtedly entitled to credit for all of those factors. There is also some credit to be allowed for the s 27 report, but not to the extent sought. In my view the most which can be allowed for all of those factors collectively is 35 per cent. That results in a sentence of four years and nine months’ imprisonment, quite some distance from any prospect of home detention which is not remotely feasible.

[16] In the circumstances you are convicted and sentenced to four years and nine months’ imprisonment on the serious charge and to six months on the threat. The conditions of your release will be for the Parole Board.

Judge CJ Harding

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 17/12/2021