R V GRINDROD HC WN CRI-2009-032-000131 [2009] NZHC 1237 (11 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                           CRI-2009-032-000131



                                     THE QUEEN



                                            v



                         TREVOR
WILLIAM GRINDROD



Counsel:       K P Feltham for Crown
               G R Fulton for Prisoner

Sentence:      11 September 2009


                           SENTENCE OF GENDALL J



[1]    Trevor William Grindrod, you appear for sentence having pleaded guilty
to
the crimes of wounding with intent to cause grievous bodily harm, aggravated
burglary and intentional damage. The facts upon which
I sentence you are as
follows.


[2]    On the night of Saturday 11 January 2009, you called uninvited at the home
of your ex-partner
in Wainuiomata. It seems your relationship had ended about six
weeks earlier. Present there was a work mate of hers and you observed
them through
a window when you arrived at the address in what you believed to be a mildly
amorous situation. Upon being let inside
the home by your partner you confronted
her friend, became angry and threatened him with words to the effect that he was a
"dead
man". You worked yourself up into a violent rage and thereafter, walked
about the streets of Wainuiomata planning what was to come
later. You returned to


R V GRINDROD HC WN CRI-2009-032-000131 11 September 2009

your ex-partner's property and stole a claw hammer
from the garage. You then
walked from Wainuiomata to the male complainant's address in Moera, Lower Hutt,
over the Wainuiomata Hill,
a journey which would have taken approximately an
hour. Your intention was to confront and attack the complainant. You had ample
time to calm your inflamed passions of anger, but you were determined to set upon
the victim armed with the hammer.


[3]      Upon
reaching the complainant's home you began to smash your way
through the front door using the hammer. You smashed glass and tried
to kick the
door open, but were unsuccessful. Undeterred, you climbed through the smashed
glass pane in the front door. Your victim
had heard you coming and barricaded
himself into his bedroom to telephone the police. But you were not to be denied.
You yelled that
you were going to kill the complainant, who told you that he was
calling the police but your response was that you did not care.
You attacked the
bedroom door with the hammer breaking through it and then a wardrobe door and
entered the bedroom and attacked the
complainant with the hammer. You struck him
about the head, face and body, as well as kicking and punching him as he lay on the
floor.


[4]      In your violent rage you continued to smash the victim's property, including
a radio, phone base and lamp in the bedroom
with the hammer. You rendered the
complainant unconscious, but he had managed to fend you off as best he could. You
grabbed him by
the throat attempting to strangle him and smashed his head into one
of the posts of the bed frame. The violent attack continued and
spilled out onto the
upstairs landing and into a bathroom, where you ripped a vanity unit from the wall
and attempted to smash the
complainant over the head with it.            I have seen
photographs of the damage that was done by your determined attack and the
events
of that night were something like out of a horror movie.           Fortunately for the
complainant the police arrived at about
3.15am and you were arrested at the scene.
The complainant was taken to hospital by ambulance, having sustained lacerations to
his
scalp and left arm, broken nose, grazed neck and throat, bruised upper body,
arms, legs and back and spent several months undergoing
physiotherapy for the
injuries sustained, and in particular to his elbow and shoulder.

[5]    You were interviewed later that morning
by the police and admitted those
facts, stating that you had gone to the complainant's address with the intention of
killing him
and had no intention to stop the attack with the hammer if the police had
not arrived.    You were originally charged also with attempted murder, not
surprisingly, given
your statement to the police and I quote part of it, namely:

       "Q.     So what were you trying to do?

       A.      Kill
him.

       Q.      What were you saying to him as you were hitting him?

       A.      I'm gonna kill you."

[6]    You now say
you did not intend to kill your victim, but simply to harm him
and you are not to be sentenced for attempted murder. However, your
actions and
behaviour took you right to the very limit.


[7]    Your personal circumstances are that you are aged 34, live in Wainuiomata
and previously had a relationship with a woman for two years.            You have 20
previous convictions, four of which are for
assault and two for wilful damage. So
you cannot call in aid an unblemished record. Of particular concern to the Court is
the fact
that one assault occurred about a year earlier, being assault upon a child, on
21 December 2007. Further, another assault upon a
child occurred within three
weeks of the present attack, namely on 21 December 2008. A psychologist's report
has been obtained and
that specialist describes you as moderate risk of re-offending
based upon statistical and other well-known psychological measures.
           But you
exhibit to a high degree what are known as dynamic violence risk factors. Put in
simple terms, you are a violent
man with a low anger threshold who, when crossed
or you perceive to be slighted by others, you attack and assault them.


[8]   
I do not accept any suggestion your offending in this case was mitigated by
"provocation". Your counsel did not advance such a submission,
but I discerned
from some of the reports made available to the Court, that you held such a belief.
There was no serious provocation
as an operative cause of the extreme violence
inflicted by you upon your victim and the property. You had ample time to cool
down
and you walked around the streets of Wainuiomata planning what you would

do, then armed yourself with the hammer and walked over
the hill to Lower Hutt, all
the time contemplating how you would attack your victim. There is no possible
basis for any claim to
provocation.       Your actions were based upon malicious
revenge.


[9]    You are in good health other than having to take anti-inflammatory
medication for injuries received in a motor cycle accident in the mid 1990s. You
told the probation officer you went into a blind
rage and that:

       "the old temper took over and controlled me..."

[10]   Whilst you demonstrate some remorse for your actions
you have tended to
minimise the injuries sustained by your victim. Your criminal history dates back to
1995 and you have a propensity
to use violence and an inability to cope with
relationship difficulties. You have previously undergone an anger management
programme,
which appears to have had little effect on your ability to handle your
anger and violent streak. Your risk of further violent offending
is assessed as
moderate until you take treatment to deal with your violent temper.


Approach to sentencing


[11]   This was very
serious violence and wounding with intent to cause grievous
bodily harm has a maximum sentence of 14 years' imprisonment. In your
case this
has to be the lead offence for sentencing purposes, but obviously the crimes of
aggravated burglary and criminal damage
are to be factored into the sentencing
process to determine an appropriate starting point, and finishing point, based upon
your overall
culpability.


[12]   The well-known Court of Appeal decision in R v Taueki  [2005] 3 NZLR 372
(CA) provides guidelines for sentencing for crimes such as this. In order to fix a
starting point I have to identify aggravating
features that are present in your case and
determine where, within the various bands of sentencing, you fall in terms of the
analysis
of R v Taueki. There is no doubt at all that there are at least five features,
which apply in your case. These are the extreme violence
involved in the attack;
your clear premeditation, having had ample time for passions to cool whilst you

armed yourself and walked
a considerable distance; the use of the weapon, namely
the hammer; you attacked the head of the victim; and your crimes were committed
in the course of a violent home invasion, where you not only invaded the home but
smashed your way through the front door and the
bedroom door, behind which the
terrified complainant had barricaded himself. You are fortunate the injuries caused
to the complainant
have not led to permanent long-term physical damage, so I do not
add this as a sixth aggravating factor in terms of Taueki.


[13]
  There are no factors in your case, which mitigate the seriousness of the
offending. There was no question of excessive self-defence
or provocation. You
clearly fall within Band 3 of Taueki.       That is, where there are three or more
aggravating features present
­ and in your case there were five. The combination of
aggravating features were particularly grave, and the starting point is within
the
range of nine to 14 years' imprisonment.


[14]   Whilst the physical injuries might not be described as serious in a lasting
sense, the fact remains that the complainant was extremely lucky the police arrived
when they did. That is as a result of his telephone
call. Because otherwise his
injuries could well have been much more severe if not fatal. But he has still been left
with a long-lasting
on-going emotional and psychological trauma.          You caused
damage to the rental property of over $3,200 and damage to the belongings
of the
complainant estimated at $7,500.


[15]   Your offending falling as it did at least into the middle of Band Three,
justifies
a starting point of 10 years' imprisonment. However, in respect of Taueki
principles, you have also been convicted of intentional
damage. And it is obvious
from the evidence and the photographs that I have seen, that you inflicted a very
substantial amount of
damage with the weapon at the victim's premises, which was
wanton destruction. It requires an uplift of six months from the starting
point for the
grievous bodily harm crime. From that you are entitled to a significant discount for
your guilty pleas. They did not
come at the earliest opportunity, but I accept they
came when the Crown agreed not to pursue the count of attempted murder.

[16]
  There are no personal mitigating features justifying any other discount or
concession. The aggravating personal features are your
previous convictions and
especially those for assaults. They require an uplift of nine months.


[17]   Accordingly, the proper lead
sentence for your crime of wounding with intent
to cause grievous bodily harm is seven years nine months' imprisonment. This is
well
in line with sentences imposed in somewhat similar cases, which I have had
regard to and which were of course all factually different,
and perhaps marginally
more serious so as to lead to greater sentences. These include R v Narayan HC AK
CRI-2003-090-009699 30 September
2009 Potter J ­ eight years' imprisonment after
a starting point of 11 years;      R vTuheke HC AK CRI-2006-044-007302 17
December
2007 Heath J ­ 10 years six months' imprisonment from a starting point
of 12 years; R v Tauaalo and Alovili HC AK CRI-2007-404-000162
20 August
2008 Duffy J ­ 10½ years' imprisonment after a starting point of 10 years was
adopted; R v Flighty HC HAM CRI-2007-019-002246
25 June 2008 Lang J ­
preventive detention but if a finite sentence had been imposed the Judge would have
taken a starting point
of 10 years' imprisonment, but the prisoner had a previous
manslaughter conviction and a finite sentence of 12 years' imprisonment would
have
been imposed. The reason your sentence is not in the range of 10 or 11 years is
solely because of your guilty pleas.


[18]
  The Crown does not seek a minimum term of imprisonment for which you
are particularly fortunate, because I could well have taken
the view that the normal
one-third parole eligibility is not sufficient to punish, deter and denounce your
offending or to protect
the community.


[19]   The aggravated burglary and criminal damage charges occurring at the same
time or in conjunction with the
wounding charge must attract concurrent sentences.
Although they are serious crimes in their own right. On the charge of aggravated
burglary you are sentenced to five years' imprisonment. On the charge of criminal
damage you are sentenced to two years' imprisonment.
Those terms are to be served
concurrently with the sentence of seven years nine months' imprisonment imposed
on the count of wounding
with intent to cause grievous bodily harm.

[20]    The Crown seeks an order for reparation in the sum of $3,269.34. When a
person
is sentenced to a lengthy term of imprisonment an order for reparation is
often seen as being unrealistic or unworkable unless the
prisoner has capital means
or savings which can be used to meet the reparation order. Nevertheless, I propose
to make a reparation
order as sought by the Crown on the basis that if you do not
have present capital means to meet that order, it simply will remain
to be enforced
upon your release into the community and have the necessary means to comply with
it.




                        
                          _________________________
                                                          J W Gendall J
Solicitors:
Crown Solicitor, Wellington
G R Fulton, Wellington for Prisoner